R. Satyanarayana Vs. Shantha (Smt.) and Ors.
EmailAppeal: Criminal Appeal Nos. 397-98 of 1987
Petitioner: R. Satyanarayana
Respondent: Shantha (Smt.) and Ors.
Apeal: Criminal Appeal Nos. 397-98 of 1987
Judges: B.N. KIRPAR & UMESH C. BANERJEE, JJ.
Date of Judgment: Apr 15, 1999
Head Note:
BUILDIND LAWS/REGULATION
Building bye-laws
Building bye-laws – Violation – Effect – Allegation that building located in residential zone was commercial one – Subsequent change in bye-laws – To which bye-laws the building should conform. Held when examining whether a building has been constructed in violation of building bye-laws only the bye-laws which were in existence when the building was sanctioned should be considered. Only if those bye.laws had been violated it would attract action by the Corporation.(Para 4)
Building bye-laws
Building bye-laws – Violation – Effect – Allegation that building located in residential zone was commercial one – Subsequent change in bye-laws – To which bye-laws the building should conform. Held when examining whether a building has been constructed in violation of building bye-laws only the bye-laws which were in existence when the building was sanctioned should be considered. Only if those bye.laws had been violated it would attract action by the Corporation.(Para 4)
JUDGEMENT:
Order
1. The appellant is the owner of a building which is a lodging house constructed sometime in the year 1981. Respondent 1 filed a writ petition inter alia contending that this building was constructed in a residential area and the Corporation could not have given permission to construct a commercial building in a residential area. The second contention was that the existing bye-laws were violated. When no action was taken by the Corporation, Respondent 1 filed a writ petition.
2. The Single Judge dismissed the writ petition. When the Division Bench heard the appeal, it was brought to its notice that in 1984 there had been a change in the zoning regulations of the building bye-laws. A report from the Commissioner was called for and it was accepted by the Division Bench, on the basis of the said report, that the property in question now fell in the commercial zone and was to longer in the residential zone. The High Court then issued the following directions:
“…. We, therefore, direct the Commissioner of the Corporation to examine whether the building erected by Respondent 2 is in accordance with the present zoning regulations and the building bye-laws. He shall do so after giving an opportunity to Respondent 2 and the appellants herein. If the Commissioner comes to the conclusion that the building or any portion thereof is not in conformity with the existing zoning regulations and the building bye-laws, he shall order the demolition of such offending portion so as to bring the building in conformity with the existing law.”
3. The only grievance of Mr. Bhat, learned Senior Counsel for the appellant is that the building was constructed in the year 1981 and it conformed with the then existing building bye-laws. The only problem at that time was with regard to the user of the building. Now in 1984 the user having been changed, no objection could be taken to that. This contention of Mr. Bhat is correct. Mr Bhat further submits that at the time when the building was constructed it was in accordance with the then subsisting building bye-laws aid if there has been any change in the building by laws in 1984 bye- laws could not be made applicable to the existing building. The submission of Mr. Bhat, therefore, is that the direction of the High Court that the Commissioner of the Corporation should examine the building with relation to the existing bye-laws was not correct.
4. There is merit in this submission of Mr. Bhat. There were two illegalities which were alleged by Respondent 1. One illegality, namely, the nature of the user, has been cured in a sense that the zoning regulations themselves have been altered and what was previously a residential zone in which the building exists has now been converted into a commercial zone. As far as the construction of the building is concerned, we are of the opinion that whether the bye-laws were violated or not has to be adjudged with respect to the time when the building was constructed. We would, therefore, modify the direction of the High Court wherein it had required the Commissioner to examine the building with relation to the new building bye-laws which came into operation in 1984. We direct that the building of the appellant would be examined in the light of the building bye-laws existing at the time when the plans of the building were sanctioned by the Corporation. IF there is any violation of the building bye-laws, the Corporation shall take action in accordance with law.
5. The appeals are disposed of in the aforesaid terms.
6. No costs.
1. The appellant is the owner of a building which is a lodging house constructed sometime in the year 1981. Respondent 1 filed a writ petition inter alia contending that this building was constructed in a residential area and the Corporation could not have given permission to construct a commercial building in a residential area. The second contention was that the existing bye-laws were violated. When no action was taken by the Corporation, Respondent 1 filed a writ petition.
2. The Single Judge dismissed the writ petition. When the Division Bench heard the appeal, it was brought to its notice that in 1984 there had been a change in the zoning regulations of the building bye-laws. A report from the Commissioner was called for and it was accepted by the Division Bench, on the basis of the said report, that the property in question now fell in the commercial zone and was to longer in the residential zone. The High Court then issued the following directions:
“…. We, therefore, direct the Commissioner of the Corporation to examine whether the building erected by Respondent 2 is in accordance with the present zoning regulations and the building bye-laws. He shall do so after giving an opportunity to Respondent 2 and the appellants herein. If the Commissioner comes to the conclusion that the building or any portion thereof is not in conformity with the existing zoning regulations and the building bye-laws, he shall order the demolition of such offending portion so as to bring the building in conformity with the existing law.”
3. The only grievance of Mr. Bhat, learned Senior Counsel for the appellant is that the building was constructed in the year 1981 and it conformed with the then existing building bye-laws. The only problem at that time was with regard to the user of the building. Now in 1984 the user having been changed, no objection could be taken to that. This contention of Mr. Bhat is correct. Mr Bhat further submits that at the time when the building was constructed it was in accordance with the then subsisting building bye-laws aid if there has been any change in the building by laws in 1984 bye- laws could not be made applicable to the existing building. The submission of Mr. Bhat, therefore, is that the direction of the High Court that the Commissioner of the Corporation should examine the building with relation to the existing bye-laws was not correct.
4. There is merit in this submission of Mr. Bhat. There were two illegalities which were alleged by Respondent 1. One illegality, namely, the nature of the user, has been cured in a sense that the zoning regulations themselves have been altered and what was previously a residential zone in which the building exists has now been converted into a commercial zone. As far as the construction of the building is concerned, we are of the opinion that whether the bye-laws were violated or not has to be adjudged with respect to the time when the building was constructed. We would, therefore, modify the direction of the High Court wherein it had required the Commissioner to examine the building with relation to the new building bye-laws which came into operation in 1984. We direct that the building of the appellant would be examined in the light of the building bye-laws existing at the time when the plans of the building were sanctioned by the Corporation. IF there is any violation of the building bye-laws, the Corporation shall take action in accordance with law.
5. The appeals are disposed of in the aforesaid terms.
6. No costs.
