Holding

There was no violation of the lease‑cum‑sale agreement or the sanctioned building plan, and the High Court’s mandamus and directions were beyond its jurisdiction.

Summary

The Supreme Court examined whether the construction of multi‑storeyed residential buildings on two adjacent plots allotted to Sadananda Gowda and D.N. Jeevaraj violated condition No. 4 of their lease‑cum‑sale agreements with the Bangalore Development Authority (BOA). The petitioners alleged that the plots had been amalgamated despite BOA’s refusal and that the building plan sanctioned by the BBMP was illegal, seeking forfeiture of the lease. The Court held that no sub‑division occurred, only amalgamation, which does not breach condition No. 4, and that the construction, though deviating in some respects, remains permissible until an occupancy certificate is denied. It further ruled that the High Court had overstepped its jurisdiction by issuing mandamus and directing BOA to forfeit the lease, as statutory discretion must be respected. Consequently, the appeals were allowed and the High Court’s orders set aside.

Issues considered

Whether the construction of a multi‑storeyed dwelling on the allotted plots violates condition No. 4 of the lease‑cum‑sale agreement.
Whether the alleged amalgamation of the two plots, despite BOA’s rejection, constitutes a breach of the lease‑cum‑sale agreement.
Whether the building plan sanctioned by the BBMP is in violation of the lease‑cum‑sale agreement and applicable building regulations.
Whether the High Court erred in directing the BOA to take action, including forfeiture, and in issuing mandamus, thereby exceeding its jurisdiction.
Whether the writ petition qualifies as a public interest litigation.

Legislation cited

Karnataka Municipal Corporations Act, 1976s. 310

Subjects

lease‑cum‑sale agreementpublic interest litigationadministrative lawstatutory discretionbuilding regulationsamalgamationoccupancy certificatemandamus

Judgment

[2015] 12S.C.R.115

D. N. JEEVARAJ A
v.
CHIEF SECRETARY, GOVT. OF KARNATAKA& ORS.
(Civil Appeal No. 13785 of 2015)
B
NOVEMBER27, 2015
[MADAN B. LOKUR ANDS. A. BOBDE, JJ.]
Lease: Allotment of plot to the appellant no. 1 and also
to appellant no. 1 by BOA - Lease-cum-sale agreement c
entered by both the appellants with BOA - Application by
appellants for amalgamation, rejected - Appellants then
sought sanction of construction of ground/stilt floor and two
upper floors and started construction which was granted -
Writ petition filed by public interest litigant, based on a news D
report alleging illegal construction by appellants and praying
for resumption of plot by authorities- Notices issued by High
Court - Meanwhile, appellants applied for modification of
sanctioned building plan, which was granted - High Court
held that the two plots were amalgamated despite refusal to E
grant permission to do so by the BOA and also that the
homogenous structure had come up on the amalgamated
plot and thus there was violation of lease-cum-sale
agreement- High Court quashed the orders sanctioning the
building construction plans in favour of the appellants and F
,directed the BOA to take action against them in terms of
condition no. 4 of the lease-cum-sale agreement - On appeal,
Held: There has been no violation of the lease-cum-sale
agreement or sanction plan for construction - Corrective G
measures can always be made by the owner of a building
until an occupancy certificate or a completion certificate is
granted - As long as the building conforms t(., the terms of
the lease-cum-sale agreement and the building regulations
and bye-laws, no objection can be taken to the construction H
115
116 SUPREME COURT REPORTS [2015] 12 S.C.R.

A - 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 of the lease-cum-sale
agreement or the building plan.

B . Public interest litigation: Scope of - Held: In issues
pertaining to good governance, the courts ought to be
somewhat more liberal in entertaining public interest litigation.

Administrative law: Exercise of discretion by statutory
C authority- Judicial review- Scope of, discussed.

Allowing the appeals, the Court

HELD: 1. Condition No. 4 of the lease-cum-sale
agreement is breached or violated under three
D 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. As far as the first circumstance is
E concern~d, there is no allegation that either of the
appellants have sub-divided their respective plot. The
allegatiol'.l (though denied) is to the contrary, which is
that they have amalgamated their plots. Assuming the
F allegation is substantiated, it can be said at best, that
they have acted contrary to the letter whereby the prayer
for amalgamation was rejected but there is no breach or
violation of condition No. 4 of the lease-cum-sale
agreement. ·There is no sub-division of the plots and to
G that extent there is no violation of condition No. 4 of the
lease-cum-sale agreement. 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
~r that the building or any part thereof is used as a shop
H or warehouse etc. [Paras 22 to 24] [131-C-H; 132-A]
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 117
KARNATAKA

2. The plea of writ petitioner was that after the writ A
petition was filed, both the appellants 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. This plea cannot be
accepted. The writ petition was filed by her at a time B
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 the appellants
could make changes therein until the grant of an
occupancy certificate by the BBMP. It would be a bit far- C
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
0
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. Merely
because a building has some deviations from the
sanctioned plan, either at the initial stage or later on in E
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 F
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 he appellants. The stage at G
which the modifications are made is not of any
consequence, as long as they are made before the
occupancy certificate or a completion certificate is
granted. [Paras 25 to 27] [132-C-H; 133-A-F]
H
118 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 3. 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
B 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 BOA is on record to
C 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
D that unless the buildings are in conformity with the
sanctioned plan and the building regulations, no
occupancy certificate will be granted to the appellants.
[Para 28] [133-G-H; 134-A-C]

4. The contention that second appellant is an
E influential politician in Karnataka and was also its Chief
Minister at the relevant time and that made it impossible
for any of ~he statutory authorities to come to any
conclusion adverse to his interest despite an ex facie
F and egregious violation of condition No. 4 of the lease-
cum-sale agreement is not tenable particularly in the
absence of any material on record. That apart, it may be
recalled that even when second appellant applied for
amalgamation of his plot with that of first appellant, he
G was an influential politician in Karnataka being the
Deputy Leader of the Opposition. Notwithstanding this,
the BOA rejected the request of amalgamating his plot
with that fir$t appellant's plot. Additionally, even while
writ petition was pending in the High Court and second
H appellant was the Chief Minister of Karnataka, an
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 119
KAR NATAKA

inspection of the premises was carried out by the A
· 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 taken
in this regard and that an occupancy certificate would B
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 the second
appellant exercised his influence as the Chief Minister
of Karnataka to arm-twist the BBMP since the inspection C
report was not entirely in his favour. 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
0
surrounding circumstances. Insofar as the present case
is concerned, in spite of the clout that second appellant
may have wielded in Karnataka, his actions relating to
the construction of the building on his plot of land do
not suggest any abuse. Undoubtedly, there are some E
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. [Paras 31, 32) [135-C-H; F
136-A-C]

5. Public Interest Litigation. Generally speaking,
procedural technicalities ought to take a back seat in
public interest litigation. In issues pertaining to good G
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 ought not to be entertained or should be rarely H
120 SUPREME COURT REPORTS [2010] 12 S.C.R.

A entertained. Other remedies are also available to public
spirited litigants and they should be encouraged to avail
of such remedies. [Para 36] [136-0-E; 137-C-O]

6. ~xercise of discretion. Where discretion is
B 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 clecision. In the present case, the High Court
has virtually taken over the function of the BOA by
C requiring it to take action against the appellants. Clause
10 of the l1ease-cum-sale agreement gives discretion to
the BOA to take action against the lessee in the event of
a default i.n payment of rent or committing breach of the
conditions of the lease-cum-sale agreement or the
D provisions of law. This will, of course, require 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 BOA in this regard, the High Court has
given a complete go-bye to the procedural requirements
E and has mandated a particular course of action to be
taken by the BOA. It is quite possible that if the BOA is
allowed to exercise its discretion it may not necessarily
direct forfeiture of the lease but that was sought to be
F pre-empted by the direction given by the High Court
which, acted beyond its jurisdiction in this regard. [Para
41] [139-C, E-G; 140-A-C]
R & M Trust v. Koramangala Residents Vigilance
Group (2005) 3 sec 91: 2005 (1) SCR 582;
G Rural Litigation and Entitlement Kendra v. State
u.
of P 1989 Supp (1) sec 504: 1988 (2) Suppl.
SCR 690; Union of India v. S.8. Vohra (2004) 2
SCC 150: 2004 (1) SCR 36; Saraswati Industrial
Syndicate Ltd. v. Union of India (1974) 2 SCC 630:
H 1975 (1) SCR 956- relied on.
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 121
KARNATAKA

7. If a court is of the opinion that a statutory A
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 B
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. C·
However, 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
0
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 Court
deserves to be set aside, apart from the merits of the
case. [Para 43] [141-B-E] E
Mansukh/a/ Vithaldas Chauhan v. State of Gujarat
(1997) 1sec622: 1997 (3) Suppl. SCR 705-
relied on.
Case Law Reference F
2005 (1) SCR 582 relied on. Para 19
1988 (2) Suppl. SCR 690 relied on. Para 34
2004 (1) SCR 36 relied on. Para 36
G
1975 (1) SCR 956 relied on. Para 38
.· 1997 (3) Suppl. SCR 705 relied on . Para 42
CIVIL APPELLATE JURISDICTiON : Civil Appeal No.
13785of2015. H
122 SUPREME COURT REPORTS [2015] 12 S.C.R.

A From the Judgment and Order dated 19.10.2012 of the
Division Bench of High Court of Karnataka at Bangalore in
Writ Petition No. 30568 of 2011 (BDA-PIL)
WITH
B C. A. No. 13786 of 2015

T, R. Andhyarujina, Basava Prabhu S. Patil, S.N. Bh~t,
Ravi Panwar, B. Subrahmanya Prasad, Nishanth Patil, Anirudh
Sanganeria, Chinmay Deshpande, Amjid Maqbool, Prashant
Bhush~m, Pranav Sachdeva, Neha Rathi, E.C. Vidya Sagar,
.c
Jennifer John, Subhash Chandra Sagar, B.K. Gautam, S. K.
Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, V. N.
Raghupathy for the appearing parties.

The Judgment of the Court was delivered by
D
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
E violated the terms of the lease-cum-sale agreement that they
have ihdividually entered into with the Bangalore Development
Authority (for short 'the BOA') by constructing a multi-storeyed
residential building on the plots allotted to them. The alternative
question is whether the construction made by them is contrary
F to the plan sanctioned by the Bruhat Bangalore Mahanagara
Palike (for short 'the BBMP') and thereby violated the lease-
cum-sale agreement with the BOA. The term of the lease-cum-
sale agreement alleged to have been violated is clause 4 which
reads as follows:
G
"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
H shall not include any apartments to the building whether
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 123
KARNATAKA[MADAN B. LOKUR, J.]

attached thereto or not, used as a shop or a building of A
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."
B
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 BOA.
The facts
c
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 D
Bangalore 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 DevelopmentAuthority (Site
Allotment) Rules, 2006. 1 In accordance with the requir.ed E
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 F
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 G
which BDA is authorized and I hereby declare so and I
hereby swear accordingly."
1 Learned counsel for Nagalaxmi Bai mentioned that the discretionary
allotment was not warranted but that was not pressed nor is it an 'issue H
before us.
124 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Pursuant to the execution of the affidavit and completion of all
necessa~y administrative formalities, the BOA 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.
·B
5. As far as Jeevaraj is concerned,· he too made a
request an or about 14th September, 2004 for the allotment of
a plot to the Chief Minister of Karnataka and was allotted a
plot by the BOA. Subsequently and on his request, the allotment
C 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 59 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
D of the plat on 24 1h November, 2008.

6. On 4th June, 2009 both Sadananda Gowda and
Jeevaraj moved an application before the BOA to amalgamate
their plats. The request was rejected by the BOA and
E commun'icated to them on 24th September, 2009 and there is
no dispute or doubt with regard to the validity of the reasol'ls
for turning down the proposal for amalgamation.

7. Thereafter, both Sadananda Gowda and Jeevaraj
Fmade 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 stf':lge, it may be noted that there was some confusion
G 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
H the buildings began on the plots owned by Sadananda Gowda
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 125
KARNATAKA[MADAN B. LOKUR, J.]

and Jeevaraj. A

9. On 2"d 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 B
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 C
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 D
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 E
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 Sadananda Gowda
(respondent No. 5). Later, the BBMP was impleaded as F
respondent No. 6 and Jeevaraj was impleaded as respondent
No. 7 in the High Court.

11. For the reGord, it maybe mentioned that on 41hAugust,
2011 the day the writ petition was filed, Sadananda Gowda G
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 H
126 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 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 BOA.
Secondly the constructed building was not in conformity with
the sanctiol'.led plan approved by the BBMP and therefore there
B was a violation of the lease-cum-sale agreement with the BOA
and the affidavit in the form of an undertaking given to the BOA.
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
c Bai.
13. The High Court admitted the writ petition and issued
notice to the respondents on 101h January, 2012.

o 14. 111 the meanwhile, Sadananda Gowda and Jeevaraj
moved applications for modification of the sanctioned building
plan. There is no dispute that this was permissible. The request
was considered by the BBMP and on 26th September/3'd
October, 2011 sanction was granted for the construction of a
E basement, ground floor and tl:lree 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 121h
June/22"d June, 2012 for a building having a basement, ground
F floor and three upper floors entirely for residential purposes.

Responses in the High Court

15. In response to the writ petition, affidavits were filed
G by the BOA, the BBMP, Sadananda Gowda and Jeevaraj.

16. The BOA 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
1-1 allegation that a five storeyed building had been constructed
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 127
KARNATAKA[MADAN B. LOKUR, J.]

was not correct nor was it correct that the building was being A
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 B
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 C
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 D
of the plot in question is 2.25 and the permissible coverage is
2 Section 310-Completion certificate and permission to occupy or use

(1) Every person shall, within one month after the compl.etion 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 E
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.
(1 A) 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 F
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. G
(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' H
128 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 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 what has been achieved in the modified
B sanctioned plan. This is as follows:
S.No. Details As per the Achieved as against
modified plan the modified plan
1. Permissible floor area 3.60 2.562
ratiq

c 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
D carried out by the Assistant Director, Town Planning and
Assistant Executive Engineer of the BBMP IJl(ith 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
E 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
F 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
G had not violated the sanctioned building plan. Jeevaraj also
filed a more or less similar affidavit emphasizing, however,
that no relief was claimed against him in the writ petition.
Decision of the High Court
H 19. After going through the affidavits filed by the various
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 129
KARNATAKA[MADAN B. LOKUR, J.]

parties and after hearing learned counsel, the High Court A
allowed the writ petition filed by Nagalaxmi Bai by its impugned
judgment and order dated 191h 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 BOA and also that a 'homogenous structure' had come B
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 22nct July, 2010 was in violation of condition No. 4 of the
lease-cum-sale agreement and that the subsequent C
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 Group 4 and held
it inapplicable to the facts of the case. Accordingly, the High
0
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 the lease-cum-sale agreement as
well as the affidavit in the form of an undertaking given by them E
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: F
"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 G
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
• (2005) 3 sec 91 H
130 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 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
clei:irly in contravention of the order passed by BOA
B rejecting the request of the fifth and seventh respondents
for amalgamating the two sites. Apart from enabling
provi$ions 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
c 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 forthe petitioner, the
construction initially was in violation of condition No. 4 of
the lease-cum-sale agreement and also therefore
0
violating affidavit of undertaking."

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

E "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
agr~ement are also to be looked into. The manner in
F which the initial plan is sanctioned by the municipal
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
G 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 BOA, cannot take advantage of this plan sanctioned
by BBMP to s~stain their action which is initially flawed
H and contrary to the terms of allotment to contend that it is
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 131
KARNATAKA [MADAN B. LOKUR, J.]

based on a valid initial plan and revised plans as A
permitted in law as per the bye-laws etc."

21. Feeling aggrieved, Sadananda Gowda and Jeevaraj
have preferred these appeals.

Discussion B

22. It appears to us, on a plain reading of condition No.
4 of the lease-cum-sale agreementthat 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 C
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 D
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 E
condition No. 4 of the 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
F I
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- G
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 H
132 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 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.

B 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.
C It is her further grievance that after the writ petition was filed
both Sadananda Gowda and 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-
D 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
E 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
F 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
G 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
H and Jeevaraj appreciated that were the structure to remain as
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 133
KARNATAKA [MADAN B. LOKUR, J.]

it is, an occupancy certificate might not be granted by the A
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.
B
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 C
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 D
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 E
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 F
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 G
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 H
134 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 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 BOA 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
B 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
C 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
D were and are still under construction and it is too early to say
thatthere 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
E 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.

F 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
G 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
H cannot ignore the contention put forward that 20% of the
building can be permissibly used for a commercial purpose. If
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 135
KARNATAKA[MADAN B. LOKUR, J.]

the putting up of shutters is suggestive of unlawful commercial A
use of a part of the building, the BDAand the BBMPwill certainly
consider the matter for whatever it is worth, including whether
20% of the building can be commercially exploited or not.

31. It is finally contended that what we are effectively B
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 C
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 D
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 req1.,1est of E
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 F
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 taken in this regard
and that an occupancy certificate would be issued only after G
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. H
136 SUPREMECOURTREPORTS [2015] 12 S.C.R.

A 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
B 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
C 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
D uphold the order passed by the High Court allowing the writ
petition and it is accordingly set aside.

Public interest litigation

E 34. Learned counsel forthe parties addressed us on the
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.
F
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 th is effect as follows:
G "The writ petitions before us are not inter-partes disputes
and have been raised by way of public intere~t litigation
and the controversy before the court is as to whether for
social safety and for creating a hazard less environment
for the people to live in, mining in the area should be
H
s 1989 Supp (1) sec 504
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 137
KARNATAKA[MADAN B. LOKUR, J.]

permitted or stopped. We may not be taken to have said A
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." B

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 c
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 di~ected only against Sadananda
Gowda and later Jeevaraj was impleaded) ought not to be D
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 E
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 oflndia v. S.B. Vohra 6
that
F
"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 G
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
H
a (2004) 2 sec 1so
138 SUPREME COURT REPORTS [2015) 12 S.C.R.

A 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 .
B 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
.c oflndia7 in the 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
D
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
E
England, when a writ of mandamus is asked for, could
be stated as we find it set out in Halsbury's Laws of
Eng/and(3rd Edn.), Vol.13, p. 106):
"As a general rule the order will not be granted unless
F 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
G 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."
H 1
(1974) 2 sec 630
0. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 139
KARNATAKA[MAOAN B. LOKUR, J.]

39. It is not necessary for us to definitively pronounce on A
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 B
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.
Exercise of discretion
c
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 BOA
to take action against Sadananda Gowda and Jeevaraj in. 0
terms of condition No. 4 of the lease-cum-sale agreement and
the affidavit undertaking given by them, thereby effectively
requiring the BOA to forfeit the lease.
41. This Court has repeatedly held that where discretion E
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 BOA by requiring it to take action F
against Sadananda Gowda and Jeevaraj. Clause 10 of the
lease-cum-sale agreement gives discretion to the BOA 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 G
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 LessorNendor may also forfeit twelve and a
half per cent of the amounts treated as security deposit under clause of these H
presents.
140 SUPREME COURT REPORTS [2015] 12 S.C.R.

A course, require 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 BOA in this regard, the High
Court has given a complete go-bye to the procedural
requirements and has mandated a particular course of action
B 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.
c
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
D 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
E
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
F 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 obligatory,
mandatory or directory, is the scheme of the statute in
G 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, ifthe authority in whom
the discretion is vested under the statute, does not act
H ' (1997) 7 sec 622
D. N. JEEVARAJ v. CHIEF SECRETARY, GOVT. OF 141
KARNATAKA[MADAN B. LOKUR, J.]

independently and passes an order under the instructions A
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 B
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 c
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 D
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 E
issued by the High Court deserves to be set aside, apart from
the merits of the case which we have already adverted to.

Conclusion
F
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.
G
Devika Gujral Appeal allowed.