T.K.THOMMEN - (1.) SPECIAL leave is granted in SPECIAL Leave Petition (Civil) No. 5275 of 1988 and we now proceed to dispose of the appeal.
(2.) THIS appeal arises from the judgment and order dated 25/03/1988 of the Karnataka High Court in Writ Petition No. 15996 of 1981 filed by the lst respondent who claims to espouse a public cause in what is styled as a public interest litigation. The appellant, Rajatha Enterprises represented by K. V. Shivakumar is a contractor in whose favour, pursuant to tender notification dated 17-8-1979, a lease was granted by the Karnataka Government in terms of lease deed dated 22-12-1979 whereby the appellant undertook to construct at 8/12/1, Old Taluk Kutchery Road, Chickpet, Bangalore City a shopping complex-cum-school on the basis of a licence granted by the Corporation of the City of Bangalore (the 'Corporation'). The appellant commenced the construction of the building. The legality of the licence was questioned by the lst respondent, S. K. Sharma in the Karnataka High Court in Writ Petition No. 15996 of 1981 alleging that the licence was granted in violation of the provisions of the Karnataka Municipal Corporations Act, 1976 (the 'Corporations Act'). On 1-3-1983 the Commissioner of the Corporation issued a show cause notice stating that the plan obtained by the appellant violated the Zonal Regulations made under the Karnataka Town and Country Planning Act, 1961 (the 'Planning Act'). The appellant denied the allegations by his reply dated 24-3-1983. On receipt of that reply, the Commissioner made the following order dated 30-6-1983 : "Aftergoing through your reply cited at SI. No. 2 above, you are permitted to proceed with the construction directly in accordance with the sanctioned plan." The High Court by its order dated 18-7-1986 partly allowed the writ petition of S. K. Sharma and quashed the order of the Commissioner of the Corporation dated 30-6-1983. The Court further directed the Commissioner to record his findings on the objections raised in the show cause notice dated 1-3-1983. Thereafter, Special Leave Petition (C) No. 1122 of 1986 was filed in this Court by the appellant challenging the judgment of the High Court. During the pendency of that petition the Commissioner took measurements of the building and made orders dated 17-8-1987, 21-8-1987 and 3-11-1987. The appellant was directed to reduce the height of the building to 35' 0" having a total floor area of 30,415 sq. ft. within 30 days from the date of receipt of the order dated 3-11-1987, failing which the Corporation threatened to demolish the three upper floors of the building at the cost of the appellant. The appellant was also directed to provide space for car parking. In the light of the orders of the Commissioner, this Court left open the questions raised by the appellant in the special leave petition and disposed of the same with freedom to it to file a writ petition or interlocutory application in the High Court to question the correctness of the order of the Commissioner.
(3.) THE appellant accordingly approached the High Court by filing IA No. XIII in the disposed of Writ Petition No. 15996 of 1981. That petition was disposed of by the High Court by its impugned order dated 25-3-1988. THE High Court accepted some of the contentions of the appellant and rejected certain other contentions. THE High Court set aside the Commissioner's order requiring the appellant to demolish the 4th floor of the building. THE High Court also set aside the order of the Commissioner to demolish the 5th floor of the appellants building but the Commissioner was given liberty to take action for compounding the deviation indicated by the Court. Until the deviation was so compounded, the appellant was restrained from occupying the 5th floor of the building. THE Commissioner's order directing the appellant to demolish the 6th floor was, however, confirmed by the High Court and it held that the Corporation should proceed to demolish the 6th floor and recover the cost of demolition from the appellant if the appellant failed to demolish that floor as directed by the Commissioner. THE appellant was further directed to reserve the basement floor of the building exclusively for car parking. Aggrieved by the order of the High Court authorising and directing the demolition of the 6th floor, the appellant has approached this Court by special leave in the present proceedings under Article 136 of the Constitution. The 1st respondent in this appeal, S. K. Sharma who was the petitioner before the High Court, has sought leave of this Court in Special Leave Petition (Civil) No. 5562 of 1988 to challenge the order of the High Court dated 25-3-1988 insofar as it has set aside the order of the Commissioner ordering the demolition of the 4th and 5th floors of the building and given liberty to the Commissioner to compound the deviation in respect of the 5th floor.;