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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 13785 OF 2015 (Arising out of S.L.P. (C) No. 37226 OF 2012)

D.N. Jeevaraj         ….Appellant  

      versus

Chief Secretary, Govt. of Karnataka & Ors.          …Respondents   

WITH

CIVIL APPEAL NO. 13786  OF 2015 (Arising out of S.L.P. (C) No. 38453/2012)

D.V. Sadananada Gowda    .….Appellant  

      versus

K.G. Nagalaxmi Bai & Ors.   ….Respondents

J U D G M E N T

Madan B. Lokur, J. 1.    Leave granted in both petitions.

2.    The question for consideration is whether the appellants  

(Sadananda Gowda and Jeevaraj) have per se violated the terms  

of  the  lease-cum-sale  agreement  that  they  have  individually  

entered  into  with  the  Bangalore  Development  Authority  (for  

short  ‘the  BDA’)  by  constructing  a  multi-storeyed  residential  

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building on the plots allotted to them. The alternative question is  

whether the construction made by them is contrary to the plan  

sanctioned  by  the  Bruhat  Bangalore  Mahanagara  Palike  (for  

short  ‘the  BBMP’)  and  thereby  violated  the  lease-cum-sale  

agreement  with  the  BDA.  The  term  of  the  lease-cum-sale  

agreement alleged to have been violated is clause 4 which reads  

as follows:

“4. The  Lessee/Purchaser  shall  not  sub-divide  the  property or construct more than one dwelling house in it.

The  expression  ‘dwelling  house’  means  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.

(a)  The Lessee shall plant at least two trees in the site  leased to him.”  

3. In  our  opinion,  both  the  questions  are  required  to  be  

answered in the negative.  There  has been no violation of  the  

lease-cum-sale agreement or the sanction plan for construction  

such as to violate the lease-cum-sale agreement with the BDA.   

The facts 4.    On or about 5th March, 2002 Sadananda Gowda (the then  

Deputy Leader of the Opposition in the Legislative Assembly in  

Karnataka) addressed a letter to the Chief Minister of Karnataka  

requesting  for  allotment  of  a  plot  from  the  Bangalore  

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Development Authority.  This request was favourably considered  

and  he  was  allotted  plot  No.  2-B  in  HSR  layout,  Sector-3,  

Bangalore measuring 50 ft x 80 ft. on 30th August, 2006 in terms  

of the  Bangalore Development Authority (Site Allotment) Rules,  

2006.1 In accordance with the required formalities, Sadananda  

Gowda executed an affidavit on 1st September, 2006 in the form  

of  an  undertaking  with  the  BDA  in  which  it  was  stated  as  

follows:-

“4. In the event that any false statements or declarations  furnished and sworn to and declared in this Affidavit and  in the event that I violate any conditions of site allotment,  the Authorities are empowered to resume such building  and site without granting any compensation to me and  BDA is entitled to and empowered to resume the site for  which BDA is authorized and I hereby declare so and I  hereby swear accordingly.”

Pursuant to the execution of the affidavit and completion of all  

necessary administrative formalities, the BDA executed a lease-

cum-sale  agreement  in  favour  of  Sadananda  Gowda  on  2nd  

February, 2007 and on the same day handed over possession of  

the plot to him.

5. As far as Jeevaraj is concerned, he too made a request on  

or about 14th September, 2004 for the allotment of a plot to the  

Chief Minister of Karnataka and was allotted a plot by the BDA.  

1 Learned counsel for Nagalaxmi Bai mentioned that the discretionary allotment  was not warranted but that was not pressed nor is it an issue before us.  

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Subsequently and on his request, the allotment was changed to  

plot  no.  13-B  in  HSR  layout,  Sector-3,  Bangalore  on  30th  

October, 2008. The area of Jeevaraj’s plot is also 50 ft. x 80 ft.  

and  it  is  adjacent  to  the  plot  allotted  to  Sadananda  Gowda.  

Jeevaraj too completed all necessary administrative formalities  

and was handed over possession of the plot on 24th November,  

2008.

6. On 4th June, 2009 both Sadananda Gowda and Jeevaraj  

moved an application before the BDA to amalgamate their plots.  

The request was rejected by the BDA and communicated to them  

on 24th September, 2009 and there is no dispute or doubt with  

regard  to  the  validity  of  the  reasons  for  turning  down  the  

proposal for amalgamation.  

7. Thereafter,  both  Sadananda Gowda and  Jeevaraj  made  

separate  applications  for  sanction  of  a  building  plan  to  the  

BBMP.   The  building  plans  were  for  the  construction  of  a  

ground/stilt  floor  and  two  upper  floors.  The  plans  were  

considered by the BBMP and sanctioned on 22nd July, 2010.  At  

this stage, it may be noted that there was some confusion with  

regard to the sanctioned construction but during the course of  

hearing it was clarified that the sanction was for a ground/stilt  

floor and two upper floors.

8. Based on the sanction so granted, the construction of the  

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buildings began on the plots owned by Sadananda Gowda and  

Jeevaraj.

9. On  2nd August,  2011  the  Bangalore  Mirror  newspaper  

carried a story alleging that Sadananda Gowda was making an  

illegal construction on the plot allotted to him and Jeevaraj by  

amalgamating the two plots. The newspaper carried photographs  

of the construction which showed one composite building under  

construction  on  the  two  plots  and  it  was  alleged  that  the  

building under construction was a five storeyed building. It was  

also  alleged  that  a  part  of  the  building  was  to  be  used  for  

commercial  purposes  although  the  allotment  was  for  a  

residential purpose.

10. Apparently based on the newspaper report (and perhaps  

her own research) one Nagalaxmi Bai filed a Writ Petition in the  

Karnataka High Court on 4th August, 2011 wherein a prayer was  

made for a declaration that the building being constructed on  

the plots above mentioned having been allotted to Sadananda  

Gowda by the BDA is an illegally constructed building and that  

the BDA ought to resume the site along with the building and  

forfeit any amount paid in this behalf by Sadananda Gowda. The  

parties  to  the  writ  petition  were  the  State  of  Karnataka  

(respondent  Nos.  1  and  2),  the  BDA (respondent  No.  3),  the  

Commissioner of Police (respondent No. 4 but later deleted) and  

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Sadananda  Gowda  (respondent  No.  5).  Later,  the  BBMP was  

impleaded as respondent No. 6 and Jeevaraj was impleaded as  

respondent No. 7 in the High Court.  

11. For the record, it may be mentioned that on 4th August,  

2011 the day the writ petition was filed, Sadananda Gowda was  

appointed as the Chief Minister of Karnataka.

12. The essence of the grievance of Nagalaxmi Bai was that  

first  of  all  the  two  adjacent  plots  were  amalgamated  despite  

refusal  by the BDA and a composite or  consolidated building  

was impermissibly constructed on them and therefore there was  

a  per  se  violation of  the lease-cum-sale  deed entered into  by  

Sadananda  Gowda  and  Jeevaraj  with  the  BDA.  Secondly  the  

constructed building was not in conformity with the sanctioned  

plan approved by the BBMP and therefore there was a violation  

of the lease-cum-sale agreement with the BDA and the affidavit  

in  the form of  an undertaking given to  the BDA.  It  was also  

alleged that contrary to the lease-cum-sale deed, the building  

was intended to be used for commercial purposes.  These were  

the three principal grievances raised by Nagalaxmi Bai.

13. The  High  Court  admitted  the  writ  petition  and  issued  

notice to the respondents on 10th January, 2012.   

14. In the meanwhile, Sadananda Gowda and Jeevaraj moved  

applications  for  modification  of  the  sanctioned  building  plan.  

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There is no dispute that this was permissible. The request was  

considered by the BBMP and on 26th September/3rd October,  

2011 sanction was granted for the construction of a basement,  

ground  floor  and  three  upper  floors  on  each  plot.   After  

admission of the writ petition, the modified building plan was  

further  modified  on  the  request  of  Sadananda  Gowda  and  

Jeevaraj and construction was permitted by the BBMP on 12th  

June/22nd June, 2012 for a building having a basement, ground  

floor and three upper floors entirely for residential purposes.

Responses in the High Court  

15. In response to the writ petition, affidavits were filed by the  

BDA, the BBMP, Sadananda Gowda and Jeevaraj.

16. The BDA denied that the two plots in question had been  

amalgamated  and  it  also  stated  that  it  had  no  role  in  the  

sanctioning  of  building  plans.  The  BBMP  stated  that  the  

allegation that a five storeyed building had been constructed was  

not correct nor was it correct that the building was being used  

for  commercial  purposes.  In  fact,  it  was  submitted  that  the  

construction had not  been completed  and so  it  could  not  be  

assumed that  the building was in violation of  the sanctioned  

building  plans  or  was  to  be  used  for  commercial  purposes.  

Attention was drawn to Section 310 of the Karnataka Municipal  

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Corporations Act, 19762 which provided that a building cannot  

be  occupied  or  permitted  to  be  occupied  without  permission  

from  the  Commissioner.3 It  was  submitted  that  Sadananda  

Gowda would be permitted to occupy the building only after an  

inspection of the building and compliance with the sanctioned  

plan.  

17. The BBMP further stated (in the additional statement of  

objections  filed  on  9th October,  2012  just  a  few  days  before  

judgment was delivered) that the permissible floor area ratio of  

the plot in question is 2.25 and the permissible coverage is 65%.  

However, since Sadananda Gowda had purchased transferable  

development rights, he is entitled to a floor area ratio of 3.60 and  

permissible coverage is 82.5%. The BBMP gave a chart of the  

permissible floor area ratio, the permissible coverage area and  2 Section 310 - Completion certificate and permission to occupy or use

(1) Every person shall, within one month after the completion of the erection  of a building or the execution of any such work, deliver or send or cause to be  delivered  or  sent  to  the  Commissioner  at  his  office  notice  in  writing  of  such  completion, accompanied by a certificate in the form prescribed in the bye-laws  signed  and  subscribed  in  the  manner  prescribed  and  shall  give  to  the  Commissioner all  necessary facilities for  the inspection of  such buildings or  of  such work and shall apply for permission to occupy the building.

(1A) Notwithstanding anything contained in sub-section (1), where permission  is granted to any person for erection of a building having more than one floor,  such person shall, within one month after completion of execution of any of the  floors of such building, deliver or send or cause to be delivered or sent to the  Commissioner at his office, a notice in writing of such completion accompanied by  a certificate in the form prescribed in the bye-laws, signed and subscribed in the  manner prescribed and shall give to the Commissioner all necessary facilities for  inspection of such floor of the building and may apply for permission to occupy  such floor of the building.

(2) No person shall occupy or permit to be occupied any such building, or part  of the building or use or permit to be used the building or part thereof affected by  any work, until,-

(a) permission has been received from the Commissioner in this behalf, or (b) The Commissioner has failed for thirty days after receipt of the notice of  

completion to intimate his refusal of the said permission. 3 This is usually known as a ‘completion certificate’ or an ‘occupancy certificate’

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what has been achieved in the modified sanctioned plan. This is  

as follows:

S.No .

Details As  per  the  modified plan

Achieved  as  against  the modified plan

1. Permissible floor  area ratio

3.60 2.562

2. Permissible  coverable area

82.50% 64.03%

It was specifically stated by the BBMP that “The modified plan  

now sanctioned is  purely  for  residential  purpose.”  The  BBMP  

further stated that an inspection of the building was carried out  

by  the  Assistant  Director,  Town  Planning  and  Assistant  

Executive Engineer of the BBMP with reference to the sanctioned  

plan. During the inspection, certain deviations were noticed and  

appropriate  action  would  be  taken  in  that  regard  under  the  

Karnataka Municipal Corporations Act and that an occupancy  

certificate would be issued only after the BBMP is satisfied that  

the construction meets the requirements of law.

18. Sadananda Gowda also filed an affidavit in the High Court  

in  which  he  denied  any  violation  of  the  lease-cum-sale  

agreement or the sanctioned building plan. He denied that a five  

storeyed  building  was  constructed  or  that  the  two  plots  in  

question were amalgamated. He submitted that an area of 20%  

could be earmarked for commercial activity and that he had not  

violated the sanctioned building plan. Jeevaraj also filed a more  

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or less similar affidavit emphasizing, however, that no relief was  

claimed against him in the writ petition.

Decision of the High Court

19. After  going  through  the  affidavits  filed  by  the  various  

parties  and  after  hearing  learned  counsel,  the  High  Court  

allowed the writ petition filed by Nagalaxmi Bai by its impugned  

judgment and order dated 19th October, 2012. The High Court  

held that the two plots of Sadananda Gowda and Jeevaraj were  

amalgamated despite the refusal to grant permission to do so by  

the BDA and also that a ‘homogenous structure’ had come up on  

the  amalgamated  plots.  There  was,  therefore,  a  violation  of  

condition No. 4 of the lease-cum-sale agreement. The High Court  

also held that the building plan sanctioned by the BBMP on 22nd  

July, 2010 was in violation of condition No. 4 of the lease-cum-

sale agreement and that the subsequent modifications were an  

exercise in ‘belated damage control’. The High Court considered  

the decision of  this Court in  R & M Trust v.  Koramangala  

Residents  Vigilance  Group4 and  held  it  inapplicable  to  the  

facts  of  the  case.  Accordingly,  the  High  Court  quashed  the  

orders sanctioning the building construction plans in favour of  

Sadananda Gowda and Jeevaraj by the BBMP and directed the  

BDA to take action against them in terms of condition No. 4 of  

4 (2005) 3 SCC 91

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the lease-cum-sale agreement as well as the affidavit in the form  

of an undertaking given by them to the BDA for abiding by the  

terms and conditions thereof and the allotment rules.

20. The sum and substance of the decision of the High Court  

is to be found in paragraph 53 and paragraph 61 thereof and  

these read as follows:

“53. From the facts pleaded and materials on record and  even  the  averments  as  contained  in  the  statements  of  objections filed on behalf of respondents and annexures  such as photographs produced by the petitioner and the  respondents,  it  cannot  be  disputed nor  in  any  manner  doubted  that  a  homogenous  structure  which  has  been  characterized as one plus four floors or  otherwise,  had  been  put  up  and  this  construction  has  come  up after  rejection  of  a  joint  request  of  the  fifth  and  seventh  respondents for amalgamating the two sites and putting  up  a  commercial  complex  or  combined  structure,  is  a  structure which is flawed from the very beginning and is  clearly  in  contravention  of  the  order  passed  by  BDA  rejecting the request of the fifth and seventh respondents  for  amalgamating  the  two  sites.   Apart  from  enabling  provisions of the building byelaws and zonal regulations,  which are brought to our attention, which may, perhaps,  enable a modification of the plans and a revised plan may  be  permitted,  if  all  is  within  the  limits  of  law and not  prohibited  by  a  basic  law.   In  the  instant  case,  as  is  pointed out by the learned counsel for the petitioner, the  construction initially was in violation of condition No. 4 of  the lease-cum-sale agreement and also therefore violating  affidavit of undertaking.”

Paragraph 61 of the decision of the High Court reads as follows:

“61. The municipal authority, if at all, is only concerned  with the building plan being in conformity with the zonal  regulations and the building bye-laws.  At the same time,  conditions  that  are  incorporated  in  the  lease-cum-sale  agreement  are  also  to  be  looked  into.  The  manner  in  which  the  initial  plan  is  sanctioned  by  the  municipal  

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authorities  approving  construction  of  ground  plus  two  floors  in  itself  indicates  that  they  are  overlooking  condition  No.  4  of  the  lease-cum-sale  agreement.  Whether this initial plan can be characterized as a valid  one or otherwise, it is obviously one overlooking one of the  conditions of  allotment and therefore the allottees,  who  are very much aware of the conditions imposed on them  by BDA, cannot take advantage of this plan sanctioned by  BBMP to sustain their action which is initially flawed and  contrary to the terms of allotment to contend that it  is  based  on  a  valid  initial  plan  and  revised  plans  as  permitted in law as per the bye-laws etc.”

21. Feeling aggrieved, Sadananda Gowda and Jeevaraj have  

preferred these appeals.

Discussion

22. It appears to us, on a plain reading of condition No. 4 of  

the  lease-cum-sale  agreement  that  it  is  breached  or  violated  

under three circumstances: (i) If the plot is sub-divided or (ii) If  

more than one building is constructed thereon for the purposes  

of human habitation or (iii) If an apartment whether attached to  

the building or not is used as a shop or a warehouse etc.  

23. As far as the first circumstance is concerned, there is no  

allegation that either Sadananda Gowda or Jeevaraj have sub-

divided their respective plot. The allegation (though denied) is to  

the contrary, which is that they have amalgamated their plots.  

Assuming the allegation is substantiated, it can be said at best,  

that they have acted contrary to the letter dated 24th September,  

2009 but there is no breach or violation of condition No. 4 of the  

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lease-cum-sale agreement. The effect, if any, of acting contrary  

to the letter dated 24th September, 2009 has not been canvassed  

or agitated. In any event, the case set up by Nagalaxmi Bai is not  

of a violation of the letter dated 24th September, 2009 but of a  

violation  of  condition  No.  4  of  the  lease-cum-sale  agreement.  

Under these circumstances, frankly, we fail to understand how it  

has been found by the High Court that amalgamation of the two  

plots (assuming it to be so) is a breach or violation of the lease-

cum-sale agreement. Be that as it may, factually there is no sub-

division of the plots and to that extent there is no violation of  

condition No. 4 of the lease-cum-sale agreement.  

24. As  regards  the  second  and  third  circumstance,  it  is  

nobody’s case that more than one building has been constructed  

on either of the plots or that the building or any part thereof is  

used as a shop or warehouse etc. Therefore, this need not detain  

us any further, more particularly since the buildings are not yet  

completely constructed.  

25. The grievance of Nagalaxmi Bai is that the photographs of  

the building indicate that the construction on the two plots is  

actually a composite or a combined or a homogenous structure  

and that construction is  per se in violation of condition No.4 of  

the lease-cum-sale agreement.  It  is  her  further grievance that  

after  the  writ  petition  was  filed  both  Sadananda  Gowda  and  

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Jeevaraj  made  some  changes  and  demolished  a  part  of  the  

structure by way of damage control so that it appears that there  

is a separate building on each plot. It is submitted that once the  

condition  of  the  lease-cum-sale  agreement  is  breached,  the  

demolition  of  a  part  of  the  combined  or  composite  or  

homogenous structure cannot undo or remedy the violation that  

has already occurred.   

26. We are not in agreement with the contention advanced on  

behalf of Nagalaxmi Bai in this regard.  The writ petition was  

filed by her at a time when the construction was in progress – in  

fact, it is still not complete. It is true that substantial progress  

was  made  in  the  construction  but  nevertheless  Sadananda  

Gowda and Jeevaraj could make changes therein until the grant  

of an occupancy certificate by the BBMP. It would be a bit far-

fetched  to  assume,  in  a  case  such  as  the  present,  that  an  

incomplete structure that can be modified is  per se  contrary to  

the building bye-laws or the lease-cum-sale agreement especially  

when  changes  or  modifications  could  be  made  therein.  

Corrective  measures  can  always  be  made  by  the  owner  of  a  

building until an occupancy certificate or a completion certificate  

is granted. It is perhaps pursuant to this ‘entitlement’ to make  

changes that both Sadananda Gowda and Jeevaraj appreciated  

that  were  the  structure  to  remain  as  it  is,  an  occupancy  

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certificate  might  not  be  granted  by  the  BBMP  and  that  is  

perhaps  why  there  was  a  partial  demolition  of  the  structure.  

They  cannot  be  faulted  for  taking  corrective  steps,  however  

belated, whether they were voluntary or prompted by the writ  

petition, or otherwise.

27. An analogy may be drawn in this connection with regard  

to deviations that sometimes come up in constructed buildings.  

Some deviations are compoundable and some are not and those  

that are not compoundable are required to be rectified before an  

occupancy  certificate  or  a  completion  certificate  is  granted.  

Merely  because  a  building  has  some  deviations  from  the  

sanctioned plan,  either  at  the  initial  stage  or  later  on in  the  

construction, does not necessarily mean that the construction is  

per se illegal  unless the deviations are irremediable,  in which  

event an occupancy certificate or completion certificate will not  

be  granted.   Changes  and  modifications  may  be  made  as  

required by the building bye-laws or by the municipal authority  

and this is precisely what has happened so far as the present  

case is  concerned,  which is  that  to  bring the construction in  

conformity with the building regulations, a part of the building  

was demolished by Sadananda Gowda and Jeevaraj. The stage at  

which the modifications are made is not of any consequence, as  

long  as  they  are  made  before  the  occupancy  certificate  or  a  

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completion certificate is granted.  

28. Nagalaxmi  Bai  is  also  aggrieved  that  multi-storeyed  

constructions have come up on the two plots.  Like  it  or  not,  

condition  No.  4  of  the  lease-cum-sale  agreement  does  not  

prohibit the construction of a multi-storeyed building on the plot  

as long as the construction is of a dwelling house which is used  

wholly for human habitation and not as a shop or a warehouse  

or  for  other  commercial  purposes.  As  long  as  the  building  

conforms to the terms of the lease-cum-sale agreement and the  

building regulations and bye-laws, no objection can be taken to  

the construction, however large or ungainly it might be. In this  

regard, the BDA is on record to specifically say that there is no  

violation of the lease-cum-sale agreement and the BBMP is on  

record to say that there is no violation of the sanctioned plan,  

except for some deviations. The BBMP is also on record to say  

that unless the buildings are in conformity with the sanctioned  

plan and the building regulations, no occupancy certificate will  

be  granted  to  Sadananda  Gowda  and  Jeevaraj.  The  matter  

should rest at that.

29. In our opinion, the High Court was in error in coming to  

the conclusion that the buildings constructed on the two plots  

were not in accordance with the sanctioned plan. The buildings  

were and are still under construction and it is too early to say  

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that there has been a violation of the sanctioned plan. No doubt  

there are some deviations as pointed out by the BBMP but that  

is  a  matter  that  can  certainly  be  attended  to  by  Sadananda  

Gowda and Jeevaraj  on the  one  hand and the  BBMP on the  

other.  The mere existence of some deviations in the buildings  

does not lead to any definite conclusion that there is either a  

breach or a violation of  condition No.  4 of  the lease-cum-sale  

agreement or the building plan sanctioned by the BBMP.

30. Another  grievance  of  Nagalaxmi  Bai  is  that  the  

construction is such that the building is capable of being used  

as a commercial complex. For instance, some photographs show  

that  shutters  have  been  put  up  and  the  contention  is  that  

actually  some shops have been constructed with shutters.  As  

mentioned above, the building is not yet complete and we cannot  

guess why shutters have been put up by Sadananda Gowda and  

Jeevaraj.  There  might  or  might  not  be  a  good  reason  for  it.  

Nothing can be assumed either way. We also cannot ignore the  

contention  put  forward  that  20%  of  the  building  can  be  

permissibly used for a commercial purpose. If the putting up of  

shutters is suggestive of unlawful commercial use of a part of  

the building, the BDA and the BBMP will certainly consider the  

matter for whatever it is worth, including whether 20% of the  

building can be commercially exploited or not.  

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31. It is finally contended that what we are effectively required  

to  do  is  to  lift  the  veil,  so  to  speak,  and  appreciate  that  

Sadananda Gowda is an influential politician and can muscle his  

way  with  the  statutory  authorities.  The  contention  is  that  

Sadananda  Gowda  was  (and  is)  an  influential  politician  in  

Karnataka and was also its Chief Minister at the relevant time  

and that made it impossible for any of the statutory authorities  

to come to any conclusion adverse to his interest despite an ex  

facie and egregious violation of condition No. 4 of the lease-cum-

sale agreement. It is difficult to accept such a blanket and free-

wheeling submission, particularly in the absence of any material  

on  record.  That  apart,  it  may  be  recalled  that  even  when  

Sadananda Gowda applied for amalgamation of his plot with that  

of Jeevaraj, he was an influential politician in Karnataka being  

the Deputy Leader of the Opposition.  Notwithstanding this, the  

BDA rejected  the  request  of  amalgamating  his  plot  with  that  

Jeevaraj’s  plot.   Additionally,  even while  Nagalaxmi  Bai’s  writ  

petition was pending in the High Court and Sadananda Gowda  

was  the  Chief  Minister  of  Karnataka,  an  inspection  of  the  

premises  was  carried  out  by  the  Assistant  Director,  Town  

Planning  and  the  Assistant  Executive  Engineer  of  the  BBMP.  

They pointed out certain deviations in the construction and the  

BBMP did state  on affidavit  that  appropriate  action would be  

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taken in this regard and that an occupancy certificate would be  

issued only after the BBMP is satisfied that the construction is  

in accordance with law. It  is  difficult  to assume, under these  

circumstances, that Sadananda Gowda exercised his influence  

as the Chief Minister of Karnataka to arm-twist the BBMP since  

the inspection report was not entirely in his favour.  

32. This is not to say that in no circumstance can a statutory  

body  not  be  influenced  by  a  politician  who  has  considerable  

clout.   A  lot  depends  on  the  facts  of  each  case  and  the  

surrounding  circumstances.   Insofar  as  the  present  case  is  

concerned, in spite of the clout that Sadananda Gowda may have  

wielded in Karnataka, his actions relating to the construction of  

the building on his plot of land do not suggest any abuse, as  

mentioned above. Undoubtedly, there are some deviations in the  

construction which will  surely  be  taken care of  by the BBMP  

which has  categorically  stated on affidavit  that  an occupancy  

certificate will be given only if the building constructed conforms  

to the sanctioned plan and the building bye-laws.

33. In view of the above, we find no good reason to uphold the  

order passed by the High Court allowing the writ petition and it  

is accordingly set aside.

Public interest litigation

34. Learned  counsel  for  the  parties  addressed  us  on  the  

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question of  the  bona fides of  Nagalaxmi Bai  in filing a public  

interest  litigation.  We  leave  this  question  open  and  do  not  

express  any  opinion  on  the  correctness  or  otherwise  of  the  

decision of the High Court in this regard.  

35. However,  we  note  that  generally  speaking,  procedural  

technicalities  ought  to  take  a  back  seat  in public  interest  

litigation. This Court held in Rural Litigation and Entitlement  

Kendra v. State of U.P.5 to this effect as follows:

“The writ petitions before us are not inter-partes disputes  and have been raised by way of public interest litigation  and the controversy before the court is as to whether for  social safety and for creating a hazardless environment for  the  people  to  live  in,  mining  in  the  area  should  be  permitted or stopped. We may not be taken to have said  that for public interest litigations, procedural laws do not  apply.  At  the same time it  has  to  be remembered that  every technicality in the procedural law is not available as  a defence when a matter of grave public importance is for  consideration before the court.”   

36. A  considerable  amount  has  been  said  about  public  

interest litigation in R & M Trust and it is not necessary for us  

to  dwell  any  further  on  this  except  to  say  that  in  issues  

pertaining to good governance, the courts ought to be somewhat  

more liberal in entertaining public interest litigation.  However,  

in matters that may not be of moment or a litigation essentially  

directed  against  one  organization  or  individual  (such  as  the  

present  litigation which was  directed  only  against  Sadananda  

5 1989 Supp (1) SCC 504

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Gowda  and  later  Jeevaraj  was  impleaded)  ought  not  to  be  

entertained or should be rarely entertained. Other remedies are  

also  available  to  public  spirited  litigants  and  they  should  be  

encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of  

public  interest  litigation  and  for  which  other  remedies  are  

available,  insofar  as  the  issuance  of  a  writ  of  mandamus  is  

concerned, this Court held in Union of India v. S.B. Vohra6  

that:

“Mandamus literally means a command. The essence of  mandamus in England was that it was a royal command  issued by the King’s Bench (now Queen’s Bench) directing  performance of a public legal duty.

A writ of mandamus is issued in favour of a person who  establishes a legal right in himself. A writ of mandamus is  issued against a person who has a legal duty to perform  but has failed and/or  neglected to do so.  Such a legal  duty emanates from either in discharge of a public duty or  by operation of law. The writ of mandamus is of a most  extensive remedial nature. The object of mandamus is to  prevent disorder from a failure of justice and is required  to be granted in all cases where law has established no  specific  remedy  and  whether  justice  despite  demanded  has not been granted.”

38. A salutary principle or a well recognized rule that needs to  

be kept in mind before issuing a writ of mandamus was stated in  

Saraswati Industrial Syndicate Ltd. v. Union of India7 in the  

6 (2004) 2 SCC 150 7 (1974) 2 SCC 630

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following words:

“The powers of the High Court under Article 226 are not  strictly  confined  to  the  limits  to  which  proceedings  for  prerogative  writs  are  subject  in  English  practice.  Nevertheless,  the  well  recognised  rule  that  no  writ  or  order  in the nature of  a  mandamus would issue when  there is no failure to perform a mandatory duty applies in  this country as well. Even in cases of alleged breaches of  mandatory  duties,  the  salutary  general  rule,  which  is  subject  to certain exceptions,  applied by us,  as it  is  in  England, when a writ of mandamus is asked for, could be  stated as we find it set out in Halsbury’s Laws of England  (3rd Edn.), Vol. 13, p. 106):

“As a general rule the order will not be granted unless  the party complained of has known what it was he was  required to do, so that he had the means of considering  whether or not he should comply, and it must be shown  by  evidence  that  there  was  a  distinct  demand of  that  which  the  party  seeking  the  mandamus  desires  to  enforce, and that that demand was met by a refusal.”

In  the  cases  before  us  there  was  no  such  demand  or  refusal. Thus, no ground whatsoever is shown here for the  issue of any writ, order, or direction under Article 226 of  the Constitution.”  

39. It is not necessary for us to definitively pronounce on the  

contention  of  learned  counsel  for  Sadananda  Gowda  and  

Jeevaraj that the litigation initiated by Nagalaxmi Bai was not a  

public  interest  litigation or  that  no mandamus ought to  have  

been issued by the High Court since no demand was made nor  

was there any refusal to meet that demand. But we do find it  

necessary to reaffirm the law should a litigant be asked to avail  

of  remedies that are not within the purview of  public interest  

litigation.

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Exercise of discretion    

40. Learned counsel for Sadananda Gowda and Jeevaraj also  

addressed us on the issue that the High Court had exceeded its  

jurisdiction in questioning the sanctioning of the building plans  

by  the  BBMP and further  mandating  the  BDA to  take  action  

against Sadananda Gowda and Jeevaraj  in terms of  condition  

No.  4  of  the  lease-cum-sale  agreement  and  the  affidavit  

undertaking given by them, thereby effectively requiring the BDA  

to forfeit the lease.

41. This Court has repeatedly held that where discretion is  

required  to  be  exercised  by  a  statutory  authority,  it  must  be  

permitted  to  do  so.  It  is  not  for  the  courts  to  take  over  the  

discretion  available  to  a  statutory  authority  and  render  a  

decision. In the present case, the High Court has virtually taken  

over  the  function  of  the  BDA  by  requiring  it  to  take  action  

against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-

cum-sale agreement gives discretion to the BDA to take action  

against the lessee in the event of a default in payment of rent or  

committing  breach  of  the  conditions  of  the  lease-cum-sale  

agreement or the provisions of law.8  This will, of course, require  

8 In the event of the Lessee/Purchaser committing default in the payment of rent  or committing breach of any conditions of this agreement or the provisions of the  Bangalore Development Authority, (Allotment of Sites) Rules, 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 per cent of the  amounts treated as security deposit under clause of these presents.

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a notice being given to the alleged defaulter followed by a hearing  

and then a decision in the matter.  By taking over the functions  

of the BDA in this regard, the High Court has given a complete  

go-bye  to  the  procedural  requirements  and  has  mandated  a  

particular course of action to be taken by the BDA.  It is quite  

possible that if the BDA is allowed to exercise its discretion it  

may not necessarily direct forfeiture of the lease but that was  

sought to be pre-empted by the direction given by the High Court  

which,  in  our  opinion,  acted  beyond  its  jurisdiction  in  this  

regard.

42. In Mansukhlal  Vithaldas  Chauhan  v.  State  of   

Gujarat9 this Court held that it is primarily the responsibility  

and duty of a statutory authority to take a decision and it should  

be  enabled  to  exercise  its  discretion  independently.  If  the  

authority does not exercise its mind independently, the decision  

taken by the statutory authority can be quashed and a direction  

given to take an independent decision. It was said:

“Mandamus which is a discretionary remedy under Article  226 of the Constitution is requested to be issued, inter  alia, to compel performance of public duties which may be  administrative,  ministerial  or  statutory  in  nature.  Statutory  duty  may  be  either  directory  or  mandatory.  Statutory duties, if they are intended to be mandatory in  character, are indicated by the use of the words “shall” or  “must”. But this is not conclusive as “shall” and “must”  have,  sometimes,  been  interpreted  as  “may”.  What  is  determinative  of  the  nature  of  duty,  whether  it  is  

9 (1997) 7 SCC 622

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obligatory, mandatory or directory, is the scheme of the  statute in which the “duty” has been set out. Even if the  “duty” is not set out clearly and specifically in the statute,  it may be implied as correlative to a “right”.

In the performance of this duty, if the authority in whom  the discretion is vested under the statute, does not act  independently and passes an order under the instructions  and  orders  of  another  authority,  the  Court  would  intervene  in  the  matter,  quash  the  order  and  issue  a  mandamus  to  that  authority  to  exercise  its  own  discretion.”

43. To this we may add that if a court is of the opinion that a  

statutory  authority  cannot  take  an  independent  or  impartial  

decision due to some external or internal pressure, it must give  

its reasons for coming to that conclusion. The reasons given by  

the  court  for  disabling  the  statutory  authority  from taking  a  

decision can always be tested and if the reasons are found to be  

inadequate,  the decision of  the court to by-pass the statutory  

authority can always be set aside. If the reasons are cogent, then  

in an exceptional case, the court may take a decision without  

leaving it to the statutory authority to do so. However, we must  

caution that if the court were to take over the decision taking  

power of the statutory authority it must only be in exceptional  

circumstances and not as a routine.  Insofar as the present case  

is concerned, the High Court has not given any reason why it  

virtually took over the decision taking function of the authorities  

and for  this  reason alone the  mandamus issued by the High  

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Court deserves to be set aside, apart from the merits of the case  

which we have already adverted to.

Conclusion  

44. Therefore, whichever way the decision of the High Court is  

looked at,  in  our  opinion,  the conclusions arrived at  and the  

directions given are not sustainable in law and are set aside.  

The appeals are accordingly allowed.

...…………………….J                                             (Madan B. Lokur)

New Delhi;                               ...…………………….J   November 27, 2015                       (S.A. Bobde)

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