ORDER [ENTITY], J.
1. This public interest litigation has been filed with a prayer that the land measuring 4 acres 28 guntas situated by the side of Cox Town, Bangalore, be restored to its original use by quashing the Government Order bearing No. HUD/190/MNY/90, dated 2-9-1993 (Annexure-A) pursuant to which part of the land has been converted for exclusive use by the members of the 4th respondent, Indian Gymkhana, a private club, by putting a compound wall all around and erecting permanent structures thereon.
2. The land in question situate on Wheelers Road, Cox Town and is meant for being used by the general public for sports and other related activities. This is now popularly known as Gymkhana Ground. During the year 1932, the respondent-Club requested the Corporation to permit them to use the land for sports activity and develop the same for public benefit. The Corporation by resolution dated 28-7-1932 resolved that the land be leased to the Club on lease at an annual rent of Rs. 5/- for a term of five years. On 14-12-1937, the lease was renewed for a further period of ten years on an annual rent of Rs. 5/-. A copy of the said lease deed together with a sketch is produced as Annexure-R1. On 15-2-1954, the lease period was extended by 15 years and again on 29-8-1969 the lease was further renewed for five years. A copy of the lease deed dated 29-8-1969 is produced as Annexure-R2. On 8-2-1978, the lease was renewed for a period of 35 years with effect from 18-6-1973 and a copy of the same is produced as Annexure-R3. All these lease deeds stipulate that the area should be used only for the purpose of conducting sports and games and it should be kept as open space.
Clauses 3 and 5 of the subsisting lease agreement (Annexure-R3) are material for the present purposes. These clauses read as under:
"Clause 3. The lessee shall use the schedule land only for the purpose of conducting sports and games and for no other purposes.
Clause 5. The lessee shall keep the schedule land as open space and shall not put up any permanent structure without the written permission of the lessor".
3. Re: Nature of the land. The respondent-Corporation in its statement of objections (para 4) has categorically stated that the land in question was used for over 60 years as a public playground by the general public. The Commissioner of the Corporation in his affidavit filed on 18-11-2002 has reiterated that the land was meant for being used for public for sports and related activities. This fact has been admitted even by the Principal Secretary to Government, Urban Development Department. In his affidavit dated 19-11-2002, at paragraph 2 whereof, he has stated that the land is an open space/playground belonging to the Corporation. Even the Secretary of the respondent-Club, at paragraph 5 of his affidavit filed on 28-8-2002, has categorically admitted that from time immemorial the land has been used for playing cricket and other games. From the above affidavited statement made by all the concerned parties it has to be taken that the land in question was all through used by the public at large and it had vested in the Corporation only as a playground, and open space.
4. Re: Change in land use. It is a matter of record that notwithstanding the lease deed executed in favour of the respondent-Club the land was being used as a public playground by the residents in and around, without any obstruction or hindrance by the club authorities. Tournaments and sports competitions in the leased area was a regular feature as this was the only space available for conducting the games. In 1972 at the request made by the club the Corporation permitted the respondent-Club to put a pavilion and a cafeteria on the land on an area of 512 sq. ft. and 280 sq. ft. respectively in order to facilitate the holding of the tournaments and games. But since 1990 the respondent-Club started making efforts for reserving the area for the use of its members only by malting applications to the Corporation and the Government seeking permission to put up certain constructions. Similar efforts were being made by some other persons as well for converting the parks and playgrounds into profit uses. The Corporation took serious note of these activities and issued notes and circulars dated 7-7-1990 and 7-8-1990 (Annexures-R6 and R7) clearly directing, that "regardless of the stage of pending of construction activities in Corporation parks and playgrounds and open spaces, the same should be stopped forthwith".
5. Despite the above notes and circulars 4th respondent-Club made an application to the Corporation for sanctioning of the construction plan which was rejected by the Corporation by issue of an endorsement dated 3-5-1991 (Annexure-R8) inter alia on the following grounds:
l. Front set back shown in the plan is 35' instead of 40' required as per the bye-laws.
2. Club consisting of Bar and Restaurant is not permitted in the Public and Semi Public Zone under normal circumstances for which permission from the B.D.A. is required.
3. According to Clause 3 of the lease deed, the land shall use only for the purposes of conducting sports and games and for no other purposes".
The respondent-Club again reiterated its request for sanctioning of the plan. The then Commissioner, for one or the other reason, vide his letter dated 31-12-1992 wrote to the State Government seeking for a clarification as to whether the sanction can be given for putting up construction. This letter has been placed at Annexure-R9. On receiving of the said communication of the Commissioner of the Corporation the State Government by its endorsement dated 22-6-1993 wrote to the Commissioner that no permission for construction can be granted to the respondent-Club, (this letter is at Annexure-R10). The contents of the letter reads thus:
"With reference to the above, I am directed to state that playground should not be given away for any kind of construction and it should be preserved as such. Hence, the proposal of the Bangalore City Corporation to construct sport complex in the playground is rejected".
Surprisingly, at a subsequent stage the State Government reviewed its earlier view and directed the Commissioner of the Corporation to permit the respondent-Club to put up a sports complex on the land in question. Pursuant to this direction the Commissioner of the Corporation sanctioned the plan filed by the respondent-Club.
6. The petitioner and other vigilant citizens of the area, having learnt about these developments and activities undertaken by the respondent-Club on the land in question, represented to the Government for stopping the misuse of the playground but having found that the Government is not willing to undo the illegality, filed the present public interest litigation.
7. Since at the time of hearing of the present writ petition the respondent-Club disputed the stand of the writ petitioners regarding actual use of the land in question as well as the extent of the constructions which have been put thereon, this Court by its order dated 28-5-1999, appointed Smt. [ENTITY], Advocate, as a Court Commissioner, to make physical inspection and to submit her report with all necessary details. The Court Commissioner submitted her report on 7-6-1999. The respondent-Club filed its objection to the said report. In the report the Court Commissioner clearly found that the schedule premises along with the construction/non-construction was being used and utilised by the 4th respondent-Club and its members as if it were exclusive property of the Club. She also found that there is a Bar and Restaurant running in the main building where liquor was sold to the members of the Club. In her report she has further stated that all the sports and games facilities were available only to the members of the Club and to the persons who are being trained by coach. The general public were not allowed inside the schedule premises.
8. The respondent-Club, in its statement of objections, instead of disputing the above factual aspect, has tried to repudiate the same by taking a stand that the Court Commissioner had no authority to make any such report since it was beyond the scope of the reference made to her. But curiously the respondent-Club in its objection has clearly admitted that the Club has put up the compound walls all along the boundaries of the land with only two entry gates and the use of the land has been restricted to the members of the Club only. They admit that the membership fee is Rs. 20,000/- per annum. They have also stated that they occasionally permit holding of Football and Hockey matches subject to the permission of the Club.
9. None of the above facts found by the Court Commissioner are disputed fay the respondents-Corporation, Club, State Government and the B.D.A. But the Club tried to justify its acts of change of land use by converting playground and open space into a Club's property to be used by its members only on the strength of the order of the Government dated 2-9-1993 (Annexure-A) and the sanction order of the Commissioner of the Corporation for putting up of construction (Annexure-B). In the above factual background the following questions have canvassed at the Bar:
(i) Whether in view of [SECTION] of the [ACT] (in short, "the [ACT]"), the Corporation could have at all leased the land for exclusive use of the Club?
(ii) Whether, keeping in view the correspondences entered inter into between the Corporation and the Club, it is reasonable to construe that the lease granted to the Club was only one for maintenance and development of the playground and not for exclusive use of the members of the Club?
(iii) Whether the change of land use by putting up constructions on the land in question was impermissible under [SECTION] of the [ACT] (in short, "the [ACT]") and therefore the playground and the open space should be directed to be restored to its original use?
10. As already noticed above it is not in dispute that for time immemorial the land in question was being used as a playground and open space by the general public and residents of the area. Keeping in view the nature of the land [SECTION] of the [ACT] comes into play for ascertaining the power of the Corporation to deal with such lands:
"174. Corporation property. (1) All property of the nature herein specified, and not being specially reserved by Government, shall be vested in and belong to the Corporation and shall, together with all other property of whatsoever nature or kind not being specially reserved by Government, which may become vested in the Corporation, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act, that is to say.-
(a) all public parks, playgrounds and open spaces reserved for ventilation;
(b) all public lamps, lamp posts and apparatus connected therewith or appertaining thereto;
(c) all gates, markets, slaughterhouses, manure and refuse depots and public buildings of every description".
Going by plain reading of the above section it becomes manifest that so far as public parks, playgrounds and open spaces reserved for ventilation are concerned no doubt such lands vest in the Corporation but the Corporation can manage and control the same merely as a trustee and it has no power to change the use of such land. The above aspect of the matter was considered by the Division Bench of this Court in the case of [PRECEDENT], wherein it was held that (para 14):
"Any private property which vests in the Corporation by virtue of [SECTION] of the [ACT] is held by the Corporation as a trustee and in its capacity as a trustee the Corporation is expected to deal with and apply it only to subserve the purposes of the [ACT]. The authority of the Corporation is limited to acting as a trustee in order to subserve the interest of the residents at large of that Corporation. Being a trustee the Corporation had no legal right to barter away any property that came to be vested in it, by virtue of operation of [SECTION] of the [ACT], to any third party. It does not become the owner, as such, of the piece of the land which vests in it, so to say that it can deal with it in any manner as it deems fit. Any application of such property which has come to vest in it, in a manner opposed to the purpose for which it can be applied by the Corporation under the [ACT] would be patently illegal. The sole purpose of vesting a certain land in favour of the Municipal Corporation is to ensure that the land concerned is put to a certain and a definite use in advancing the object for the attainment of which the [ACT] was promulgated".
11. In the case of [PRECEDENT]., , the Supreme Court under somewhat similar circumstances as appearing in the present case decried the action of the Municipal Corporation in permitting the change of use of a public park for the purpose of constructing an underground shopping complex. In para 59 of the judgment it has been held that:
"Under [SECTION] of the Act it is the obligatory duty of the [ENTITY] to maintain public places, parks and plant trees. By allowing underground construction [ENTITY] has deprived itself of its obligatory duties to maintain the park which cannot be permitted. But then one of the obligatory functions of the [ENTITY] under [SECTION] is also to construct and maintain parking lots. To that extent some area of the park could be used for the purpose of constructing underground parking lot. But that can only be done after proper study has been made of the locality, including density of the population living in the area, the floating population and other certain relevant considerations. This study was never done. [ENTITY] is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort case [PRECEDENT], . Public Trust doctrine is part of Indian Law".
12. Now coming to the facts of the present case, no doubt, the playground and open space in question was leased out to the respondent-Club in 1935 but admittedly since then till 1993 the nature of the land and its user had always been preserved. The land was all through available as a playground and an open space for use of the public and the residents of the area. The respondent-Club neither exercised nor was permitted to exercise any ownership rights over the land nor the use of the land was restricted to any particular class or group of persons. Therefore, there was no occasion for anyone to complain of violation of [SECTION] of the [ACT]. But since 1993 the respondent-Club started exercising its right as a lessee like that of a private land and started putting up constructions under the guise of the impugned Government order at Annexure-A. The public representatives raised objection to such actions.
13. In our considered opinion. [SECTION] of the [ACT] clearly mandates that the Corporation has to manage and control the parks, playgrounds and open spaces reserved for ventilation for the use those are earmarked and it has no authority to alienate or transfer such lands even by way of lease to create private interest. The Corporation is duty-bound to maintain the public character of such lands and any effort to deviate from this statutory obligation would amount to breach of public trust which on having so found has to be corrected by the Courts.
14. In the present case, if, the stand of the respondent-Club that pursuant to the lease deed executed by the Corporation in their favour they are entitled to exercise all the powers of a lessee as that of a private land then per se the lease has to be declared as void under [SECTION] of the [ACT]. Because, conferment of leasehold rights over playground and open space is contrary to the statutory provisions contained under [SECTION] of the [ACT] and also opposed to public policy.
15. [SECTION] of the [ACT] reads as under:
[SECTION]. What considerations and objects are lawful and what not. Consideration or object of an agreement is lawful, unless-
it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to the public policy;
In each of these cases, consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void".
16. Anyhow, since the respondent-Club had been managing the land since 1932 without changing the land use and maintaining it as a playground it is more appropriate to treat the club having been conferred with the only power of management and maintenance of playground and open space. This will be in conformity with [SECTION] of the [ACT] and will also advance public interest for maintaining the land as playground and open space. Accordingly, we hold that the State Government had no authority in law to permit the respondent-Club to put up any construction on the land which will change the nature of the land use and converting the land for exclusive use of the members of the respondent-Club only. The Commissioner of the Corporation had also acted in derogation of the statutory obligations in abiding the directions of the State Government. Therefore, the impugned orders at Annexure-A as well as sanction of the plan at Annexure-B are ex facie contrary to the legislative mandate and therefore unsustainable in law.
17. As regard question. No. (iii), keeping in view our findings as above, for the facts of the present case we do not propose to examine this question because irrespective of the provisions contained in the [ACT] since there is absolute bar on the part of the Corporation to change the use of the playground and open spaces reserved for ventilation this by itself is enough to annul the actions of the State Government and the Corporation.
18. Accordingly, we quash the Government Order bearing No. VNE 190 MNY 90, dated 2-9-1993 (Annexure-A) being ultra vires the powers of the State Government. Consequently, the sanction accorded by the Corporation to the plan for putting up construction on the land in question (Annexure-B) is also nullified. Respondents are directed to restore the land in question as a playground and open space with unrestricted right of use and entry of the public. Anyhow, the compound walls and fences erected around the land in question will vest in the Corporation as it will be necessary for proper control and protection of the land from encroachments.
19. Writ petition is accordingly allowed.