NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 101 OF 1999 (Against the order dated 16.1.1999 in complaint No. 129/96 of the State Commission, Karnataka) The Commissioner, Bangalore City Corporation, Bangalore-560 002 Karnataka . Appellant Vs. 1. Dr.Shankarappa No.1635, 80 Feet Road, BSK I stage, II Block, Bangalore-560050 Karnataka 2. Dr. Janardhana Murthy No.1635, 80 Feet Road, BSK I stage, II Block, Bangalore-560050 Karnataka .. Respondents 3. Sri Karibasappa, Asstt. Executive Engineer Basavanagudi Sub-Division, Bangalore Mahanagara Palike, Basavanagudi Bangalore-560 004, Karnataka. 4. Sri N.V.Vijayakumar, Bangalore Mahanagara Palike Division No.48, Basavanagudi, Banagalore-560 004, Karnataka. Present Address; The Asstt. Executive Engineer, Binnypet, Bangalore Mahangara Palike, Bangalore, Karnataka .. 5. Sri C. Narayana, Asstt. Executive Engineer, Padamanabhanagar Sub-Division, Bangalore Mahanagara Palike, Bangal 6. Shri Chowdappa Asstt. Engineer, Padamanabhanagar Sub-Division, Bangalore Mahanagara Palike, Bangalore, Karnataka. respondents 3 to 6 are proforma respondents BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER. For the Appellant : Mr. S.N. Bhatt, Advocate For the Respondent Nos. 1 & 2: Dr. (Mrs.) S. Shobha, Authorsied Representtive For the Respondent Nos. 3 to 6: N E M O Dated the 22nd March, 2006 M.B. SHAH. J. PRESIDENT This case illustrates how a common man can be harassed and ruined by the functionaries of statutory body such as City Corporation. It aptly reflects what is observed in Lucknow Development Authority Vs. M.K.Gupta, (1994) 1 SCC 243 by the Apex Court: An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. . A public functionary if acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. However, this case reveals that the Complainants stood firm against the arbitrary and corrupt exercise of power by the officers of the City Corporation for oblique reasons, and approached various authorities including the High Court for redressal of their grievance. Facts
:
The
only fact relevant for discussion is that the Complainant No.1 and his son- Complainant
No.2 (since died as contended by his
wife because of the mala fide exercise of power by the officers of the
Corporation) constructed a house at the
outskirts of City Corporation,
Bangalore. Plan was
sanctioned by the City Corporation.
However, the complainants received a notice from the City Corporation stating that
use of the house was for the commercial
purpose and this was against the rules of
the sanctioned plan. Against
that, the Complainants filed Writ Petition No.6917/96 before the Karnataka High Court for quashing the
notices dated 20.2.1995, 5.6.1995,
5.3.1996 issued by the City Corporation.
Before the High Court, the contention of the Corporation was that they
found fault with the construction made by the Complainant, as:
(i). the
basement floor is being converted for commercial purpose; and
(ii). five cement columns are
erected in the basement.
During
the course of hearing of the matter before the High Court on 20.6.1996, the Complainants gave an
undertaking by way of an affidavit to the effect that the basement part would not be used for
commercial purpose. Complainants had also assured the High Court that they
would be proceeding with the
construction strictly in accordance with the plan and if there was any
deviation from the sanctioned plan or if the Complainants were to make any
deviation outside the plinth area, the Corporation would be free to take such
action including demolition of such
structure. On that basis the Court passed the following order:
The provisional order, dated 20th
February, 1995, copy of which is marked as Annexure-D and the confirmation
order, dated 5.6.95, copy of which is marked as Annexure-F, will not be given
effect to unless the petitioner has made any external deviations from the
sanctioned plan. In so far as
regularisation of minor deviation is concerned, the respondent corporation would
consider the same in accordance with the current bye-laws which permit
compounding of deviations. The
Corporation would also take into consideration any changes in the Zonal Regulations/change of land use as regards the site in
question.
Thereafter, the Complainants
approached the Bangalore City Corporation produced the following Notification:
As per Government Notification No.
238 MNJ 94 dated 31.10.95, any building constructed before 31st
January, 1995 on a revenue site owned by the owner, if it comes under the
purview of Corporation or Bangalore Development Authority or under any Board
shall be regularised by taking a penalty of Rs.10/- (Rupees Ten only) per sq.
ft. with effect from 30th June, 1995 even if it is unauthorised.
The
Complainants have also produced on
record a circular dated 14.6.96 issued by the Government of Karnataka,
permitting the Corporation to regularize the
minor deviations by charging amounts, if any, specified therein.
Despite
the order of High Court and the application filed by the complainants, no action was taken by the Corporation and
they did not permit the Complainants to use the building.
Hence,
Complaint No.126/96 was filed before the State Commission, Karnataka. During pendency of the complaint before the
State Commission, the Officers of the City Corporation got demolished certain
alleged deviations on 4.4.98 on
the ground that the building plan was sanctioned for residential accommodation and some part of it
was used for commercial purpose.
As
the building was demolished, the Complainants approached the High Court by
filing contempt petition No. C.C.C
No. 974/1998 which was placed before the Division Bench. The Division Bench, by observing that the
Corporation have not willfully disobeyed any of the Court directions, dropped the contempt proceedings. However, it was observed that dismissal of
contempt proceedings would not prevent the complainants or any one of them for initiating legal
proceedings with respect to the action of the respondents, if so advised and permissible
under law.
In view of the aforesaid
observations, the Complainants approached the higher authorities of the
Corporation for compensation. However,
that matter is kept pending on the alleged ground that the Corporation have approached
the Supreme Court against the order passed in Writ Petition no. 6917/96.
Subsequently,
After hearing the parties at length and considering the relevant documents,
the State Commission by its order dated
16.1.1999 partly allowed the complaint
and directed the Commissioner,
Bangalore City Corporation and its
officers to give No Objection
relating to the providing of civic
amenities to the building of the Complainants wherever such No Objection is
legally necessary, within one month from the date of receipt of the order,
unless there is a legal ground either in the Act or Rule or Regulations to
refuse the same. The State Commission
also directed that the Corporation shall take into consideration the nature of the
direction issued by the High Court of Karnataka by order dated 20.06.96 in Writ
Petition NO. 6917/96.
It also directed the Corporation to pay Rs.15,000/-
as compensation with interest @ 12% from the date of complaint till payment
with costs of Rs.2,000/-.
Against the said order, an appeal is
filed by the Bangalore City Corporation.
Findings:
(a) Complainants
have relied on the Government Notification dated 5.1.1995 with regard to the revised comprehensive
development plan to establish that
the land upon which the complainants have constructed the
building is within commercial zone. This is notified by Dr. A. Ravindra, Chairman, Bangalore
Development Authority. The Notification is reproduced as under:-
The Comprehensive Development Plan (CDP) for
Bangalore approved by the Government of Karnataka in the year 1984, has been
revised by the Bangalore Development Authority, which is the Planning Authority
for the Metropolitan area of Bangalore, as required under Section 25 of the
Karnataka Town & Country Planning Act, 1961. The revised C.D.P. was approved by the
Government in G.O. No. HUD 139 MNJ 94 dated 5.1.1995. The plan covers an area of 1279 Sq. Kms.
The CDP lays down the policies and
programmes for the overall development of Metropolitan area taking into
consideration the long term requirements.
The land requirement for different uses like residential, commercial,
industrial, public and semi public, traffic and transportation, parks and open
spaces have been worked out and suitably located. The plan consists of both the land use and
the regulations. The regulations are
comprehensive and simple in nature. In
each use zone, certain uses are normally permitted and certain other uses may
be permitted by the Authority under special circumstances.
The proposals of the revised CDP and the
zoning regulations framed there under are expected to help in creating a
healthy urban environment to enable the citizens of Bangalore to live with comfort and to promote the beauty of the
city.
With the aforesaid Notification, Plan is attached which establishes that the complainants area is within the commercial zone.
(b) Thereafter,
the Complainant has brought on record the letter dated 15.3.1996 written the by
Member of the Town Planning, Bangalore Development Authority to the
Complainant, Dr.P.Shankarappa, to the effect that the
house No.140:26, was under commercial zone under the Revised Comprehensive Town
Planning Scheme.
(c) The
Complainant has also produced on record explanation letter written by S.Janardhana Murthy, which is as under:
As
per Government Notification No. 238 MNJ 94 dated 31.10.1995, any building
constructed within 31st January 1995 on a revenue site owned by the
owner, if it comes under the purview of Corporation or Bangalore Development
Authority or under any Board shall be regularized by taking a penalty of
Rs.10/- (Rupees Ten only) per sq. ft. with effect from 30th June,
1995, even if it is unauthorised.
In this view of the matter, at the time
of hearing of case at Bangalore Circuit Bench of this Commission, we called the
Additional Commissioner, Mr. Gaurav Gupta to look
into the matter and finalise the deviations as per the Regulation. Despite this, he, by ignoring the notification and the
Revised Comprehensive Town Planning Scheme, made a statement to the effect that
till today the Complainants were
using some portion of the building for commercial purpose and, therefore,
nothing could be regularised by the Corporation.
In our view, the stand taken by the officers of the
City Corporation is apparently for
ulterior motive and for harassing the complainants on one ground or the
other even by ignoring
the specific directions issued by High Court as well as directions
issued by the State Commission. Once the
area is in commercial zone the Complainants are entitled, as a matter of right, to use the same for
commercial purpose.
Hence,
when the matter was again heard at Delhi we asked the learned Counsel, Mr. S.N.Bhat, to make a clear statement on affidavit as to
whether the building was in commercial area or not. Finally, with reluctance the officers of the
Corporation admitted that the area in which the building was constructed by the
Complainants is in commercial zone. In this connection, learned Counsel Mr.Bhatt
received a fax message dated 16.3.2006 from the Joint Director of Town Planning
to the following effect:
As discussed in the H.O.D. meeting
held today, the 16th March, 2006, this is to submit that the property bearing No. 140/26, 5th
Cross, 22nd Main, Srinagar, Bangalore 50, is earmarked for commercial purpose in the 1995 Revised
Comprehensive Development Plan of Bangalore.
As
per the Zoning Regulations of the Revised Comprehensive Development Plan 1995
(which is still in force) in the commercial zone residential building are
permissible.
It
is found that a modified plan has been sanctioned for residential purpose in
the above said site in favour of Sri P.Shankarappa on
03.08.1994 vide LP No. 210/92-93 by the Superintendent Engineer, South Office,
MBP. But now the building is being used for commercial purpose. The building
has violated the sanctioned plan and also the Building Bye-Laws. The deviation
such as setbacks, coverage, FAR etc. are more than 5% which is not permissible
to regularize. The building is already having electricity and drainage
connections. Hence, occupancy certificate has not been issued.
The
aforesaid belated admission makes it clear that the officers of the City
Corporation were harassing the Complainants by ignoring the fact that the
building was in a commercial zone. Not only that, pending the complaint before the State
Commission, they have demolished some portion despite the direction issued by
the High Court. Further, on record,
there is a circular dated 14.6.1996 permitting the City Corporation to compound
any type of violation or deviation.
Hence,
this is a fit case in which the law laid down by the Apex Court in Lucknow Development Authority (supra), is required to be implemented with full
vigour and in its true spirit. Citizens of a Socialist Democratic Republic
should not feel helplessness against undesirable functioning in the government
or semi-government offices. Because of the such
harassment crime and corruption thrive and prosper in the society due to lack
of public resistance, or, putting in other words, succumb to the pressure of
undesirable functioning of the officers instead of standing against this. For
this allegations are made by the Complainants, but the same are not necessary
to be discussed in this case.
Whether complaint is maintainable:
However,
Ld. Counsel for the Appellant contended that the complaint before the State
Commission was not maintainable as there is no relationship between the
Complainants and the City Corporation of providing services by charging fees.
This
contention was also considered by the State Commission in detail and rightly
referred to para 4 of the judgement of the
Apex Court in the case of Lucknow
Development Authority Vs. M.K.Gupta (Supra). In that paragraph the Court has, inter alia, held:
The legislative intention is thus clear to
protect a consumer against services
rendered even by statutory bodies. The test, therefore, is not if a person
against whom complaint is made is a statutory body but whether the nature of
the duty and function performed by it is service or even facility.
In
the present case, the service which is required to be rendered by the
Corporation is issuance of
No Objection Certificate in order to enable the Complainants to
have the basic amenities like water, electricity and other allied items. For this purpose reliance is placed on
Regulation 5.01 of the Bangalore Water Supply Regulations, 1965. It reads as under:-
Application
for house connections The owner, lessee or occupier,
who desires to have a supply of water shall make an
application for water connection to the Water Supply Engineer, in the form
prescribed by the Board through a plumber licensed by the Board. The application shall be accompanied by
sanctioned plan of Tax Paid Receipt, an endorsement for having paid the
road cutting charges to appropriate authority, a detailed estimate of cost
of connections, and three prints of the several houses in the compound and the
details of layout of the pipe lines, in relation not only to the Boards
distribution lines running close but also to the public and private drains
latrines, etc.
The State Commission has also referred
to the definition of the word deficiency as provided in Section 2(1)(g), which is as under:
deficiency means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any service.
From this provision, it is apparent that if there is any
fault or shortcoming in nature and manner in performance of service which is
required to be maintained by or under any law for the time being in force,
would be considered as deficiency in service.
For these services, charges are paid by the
Complainants. This payment would
certainly be in the nature of a fee required by the Corporation as costs for
permitting the road cutting for having water and electric connections. Complainants have also paid ground charges
and betterment charges and these are specific charges or fee for providing
services. In this view of the matter, it
cannot be said that the service rendered by the Corporation is without levying
any fee or charges.
For this, the State Commission has
rightly referred to the regulations which require no-objection certificate by
the City Corporation, i.e. Regulation No. 5.02 of the KEB (Karnataka
Electricity Board) Electricity Supply Regulation, 1988, which we are not
referring at this stage. It is difficult for the Complainants to have
electricity connection to their building without no-objection certificate
issued by the City Corporation. Before
the State Commission it was admitted that they did not issue no-objection
certificate for the reasons that there was violation of the building plan. Before this Commission Mr.
Bhatt, learned counsel for the Appellant, produced a fax message as stated above, wherein
it has been mentioned that that Complainants were using the building for commercial purpose and The building is already having
electricity and drainage connections. Hence, Occupancy Certificate has not been
issued. Therefore, the aforesaid stand
is totally inconsistent and is only to harass the Complainant.
Compensation:
In our view, for malafide and oblique reasons the officers of the
Corporation have harassed the complainants and not permitted them to occupy the
premises for 11 years despite the directions given by the High Court. Further, after demolition of alleged
unauthorised construction there was no reason for not issuing No Objection
Certificate.
For this reason, before the State Commission
the Complainants prayed for compensation for a sum of Rs.9,75,000/-. However, details for such a
claim were different. After considering the fact that the
deficiency in service was after 20th June, 1996, i.e. the judgment
of the High Court in the Writ Petition No. 6917 of 1996 the Commission awarded
only Rs.15,000/- as compensation. That compensation is required to be revised
because till today though no objection certificate is required, it is not issued to the complainants.
For this purpose, the
Complainants have filed an application dated 10.06.99, in the appeal filed by the
Corporation, for enhancement of the
compensation awarded by the State Commission.
However,
Mr. Bhatt submitted that this application cannot be treated as an appeal for
enhancement of compensation and in any case, it is time-barred as the State
Commission passed the order on 16.01.99.
As
against this Dr. (Mrs.) Shobha (wife of complainant
No.2) ubmitted that she received copy of the order of
the State Commission in March, 1999 and the application was filed on 10.6.99.
This application may be treated as cross-appeal or revision petition and is not
time barred. In any case she has filed application for condonation
of delay along with affidavit in support of it.
In our view, the application filed by the Complainant is to be
considered as revision or cross-revision against the order passed by the State
Commission. Even, if there is any delay for a few days, it is required to be condoned in
the interest of justice so that the Complainant who is wronged and is harassed
since 1996 gets appropriate relief.
At this stage, it would be worthwhile
to reproduce the observations of the Apex Court in Lucknow Development Authority
(supra), that :
Law means long felt necessity of protecting the common man from
wrongs for which the remedy under the ordinary civil law for various reasons
has become illusory.
It attempts to remove the
helplessness of a consumer which he faces against powerful business, described
as, a network of rackets or a society in which, producers have secured
power to rob the rest and the might of public bodies which are degenerating
into storehouses of inaction.
In this case order for awarding compensation is required to
be passed by considering that (i). the
action of the officers of Corporation is totally malicious; (ii). it is against
the Revised Comprehensive Town Planning
Scheme for which necessary notification was issued and the letter dated 15.3.96
was written by the Member, Town
Planning, Bangalore Development Authority
to the effect that the premises of the Complainants was in commercial zone;
(iii). it is virtual and intentional flouting of the directions issued by the High Court in Writ Petition
only with a view to harass the
complainants; (iv) after demolition of alleged unauthorised portion of the
building, there was no reason for not
issuing the no-objection certificate (iv) till today the Complainants are not
permitted to occupy the premises except few rented shops; (v) it is against the
circular dated 14.6.1996 issued by the Government of Karnataka, permitting the
Corporation to regularise the minor deviations by charging amounts, as
specified therein; and (vi) it is also against the Notification dated
31.10.1995, as reproduced above.
Hence, for assessing the loss, we have to consider that the complainants were not
permitted to utilise his premises fully from 1995 to 2006, for no fault on
their part, and that they were harassed and were compelled to resort to various
litigations. Hence, this a fit case for
passing appropriate orders to compensate the complainants for the loss suffered
by them. Before the State Commission the
Complainants have claimed Rs.7,30,000/- per year. In
our view, that is apparently on the higher side. However, if we take into
consideration the over all facts and the nature of dispute and the malicious
and unethical attitude of the officers of the Corporation and the pendency of
the matter for ten years, it would be just and proper to direct the City
Corporation to pay Rs.10 lakhs towards compensation to the Complainants. This
quantification of the amount is much more less than the amount of rent which
the Complainants would have received if the premises were given on rent or the
amount of loss
of interest on the cost of construction.
Hence,
in the result, it
is ordered that:
1. For
the reasons stated above, and also taking into consideration the amount of
harassment and mental
agony undergone by the complainants for nearly ten years, the Bangalore City Corporation to pay Rs. 10 lakhs
towards compensation to the complainants.
2. Further,
it is directed that within 15 days of receipt of this order, the Appellants
shall issue No-Objection Certificate relating to providing all civic amenities
to the buildings of the Complainant which would include of getting water
connection, drainage connection, etc.
However,
it is made clear that in any case, if there is any unauthorised construction in
the building in question which is located in a commercial zone, it would be
open to the City Corporation to issue a fresh notice stating to what extent
there is violation and the reasons as to why it could not be regularised. After
issuing such notice
and giving an opportunity
of hearing to the complainants,
appropriate speaking order in conformity with the rules for building in
a commercial zone would be passed by the Corporation.
The
above direction is in conformity with the order passed by the High Court in
W.P. No. 6917 of 1997 decided on 20.6.1996.
The Appeal is dismissed accordingly.
The Appellant, Bangalore City
Corporation shall also pay Rs.25,000/- towards litigation
expenses to the Complainant.
Sd/-
….J
(M.B. SHAH)
PRESIDENT
Sd/-
…..
(RAJYALAKSHMI RAO)
MEMBER