Case: Purushotham Vs. State Of Karnataka

the aforesaid observations are a complete answer to all the submissions made by the learned counsel for the appellants. 14. This apart on the interpretation of Section 38A(1) and (2), the inescapable conclusion is that under Section 38A (1), BDA would have the authority to lease, sell or otherwise transfer any area reserved for the purpose for which such area is reserved, and no other. This clearly means that the Government can pass on the responsibility to another concern, be it individual, company or corporation for the purposes of carrying on the activity for which the plot has been reserved as a civic amenity. It does not give a licence to the BDA to convert the area reserved for civic amenities for activities which do not fall within the definition of civic amenities. Sub-section (2) of Section 38 is an embargo that even such sale or disposal otherwise of an area reserved for public parks, playground would not be permitted to private parties. Though such spaces, playgrounds and parks can be transferred to public authorities, but their user would be limited to the purposes for which they are reserved under the scheme. In case, a disposition is made for a purpose other than the one for which it is reserved, the Act has declared that, it shall be null and void. In our opinion, Rule 3 of which the support is sought by the appellants can not be permitted to override the statutory provision contained in Section 38A(1) and (2). Even otherwise, the rule only reiterates the statutory provision in Section 38A(1) and (2). We also do not find any substance in the submission that the site was never allotted as a bank, and, therefore, it could be allotted as a petrol pump. The High Court upon perusal of the pleadings as well as annexure ‘c’ appended to the writ petition has recorded the following facts : “In so far as the factual matrix is concerned, it is necessary to record that the site in question was originally earmarked as park/playground in 1984. This factual position stands acknowledged at the hands of the Bangalore Development Authority in paragraph 5 of its counter affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/play ground. The first of these is presently being used by the Bangalore Water supply and Sewerage Board. The second site, which is the one in question was earmarked for use as a “bank”. So far as the instant aspect of the matter is concerned, our attention has been invited to Annexure-C appended to the writ petition, wherein civic amenity site no.2 has been shown as earmarked for “bank”. The aforesaid Annexure-C came to be executed on 06.01.1996. Civil amenity site no.2 is indicted therein, as measuring 2195.35 sq. meters. In the column titled “purpose for which earmarked”, Annexure-C specifies “bank”. It is the contention of the petitioners that, civic amenity site no.2 which was earmarked exclusively for use as “bank” has never undergone any change at the hands of the Bangalore Development Authority. Civic amenity site no. 3 is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connection therewith.” 15. Upon consideration of the submissions of the learned counsel for the parties, the High Court has concluded – “We are satisfied that civil amenity site no. 2, at the time of its allotment to respondent no.3 was expressly earmarked for use as “bank”. The aforesaid position has remained unaltered to this day. In terms of the mandate contained in Section 38-A of the Bangalore Development Authority Act, 19776 it could not have been leased, sold or otherwise, transferred for purpose other than the one “….for which such area is reserved”. Since the civil amenity site in question was earmarked/reserved for “bank”, we are satisfied that it could not have been allotted for use as a “petrol station”. 16. From the above, it is evident that in fact, the site had been originally earmarked to be developed as a public park/playground in 1984. However, since the same has been converted to a residential area, respondents Nos. 4 to 14 have very fairly stated that it could not at this stage be restored to its original purpose without causing havoc in the lives of the residents. They have, therefore, not insisted that the site be restored to its original purpose.17. We also do not find any merit in the submission that the term civic amenities would permit BDA to change the reservation from one particular user to another without the necessary amendment in the development plan. This would be contrary to the law laid down by this Court in the case of B.S. Muddappa (supra).18. We also do not find any substance in the submissions that the High Court has wrongly distinguished the judgment of the earlier Division Bench of the High Court in Aicoboo Nagar Residents Welfare Association (supra). A perusal of the paragraph 10 of the aforesaid judgment clearly shows that in that case, the High Court considered the legality of allotment of civic amenity site no.3. There was, in fact, no change in the activity/purpose, as the site had not been reserved for any specific purpose. The other question was whether the lease in favour of the government company for opening of petrol and diesel outlet would fall within the definition of civic amenity. In the present case, it was not the case of the respondent nos. 4 to 14 that petrol pump is not a civic amenity, therefore, the site could not have been allotted to open a petrol pump. The grievance of the respondents (writ petitioners in the High Court) was that civic amenity site no.2 had been earmarked for a bank and could not be allotted for a petrol pump without making necessary amendment in the site. Therefore, the High Court has rightly distinguished the aforesaid judgment and not relied upon the same. 19.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, it is no longer necessary for us to consider the issues raised by the appellants on first principle, as the issue is no longer res integra. In the case of B.S. Muddappa (supra), this Court examined the entire issue wherein, it has been heldthe legislative intent of the Bangalore Development Authority (Amendment) Act, 1991 (hereinafter referred to aswhich came into force w.e.f. 16th January, 1991 is to prevent the diversion of the user of an area reserved for a public park or playground or civic amenity to anotherapart on the interpretation of Section 38A(1) and (2), the inescapable conclusion is that under Section 38A (1), BDA would have the authority to lease, sell or otherwise transfer any area reserved for the purpose for which such area is reserved, and no other. This clearly means that the Government can pass on the responsibility to another concern, be it individual, company or corporation for the purposes of carrying on the activity for which the plot has been reserved as a civic amenity. It does not give a licence to the BDA to convert the area reserved for civic amenities for activities which do not fall within the definition of civic amenities. Sub-section (2) of Section 38 is an embargo that even such sale or disposal otherwise of an area reserved for public parks, playground would not be permitted to private parties. Though such spaces, playgrounds and parks can be transferred to public authorities, but their user would be limited to the purposes for which they are reserved under the scheme. In case, a disposition is made for a purpose other than the one for which it is reserved, the Act has declared that, it shall be null and void. In our opinion, Rule 3 of which the support is sought by the appellants can not be permitted to override the statutory provision contained in Section 38A(1) and (2). Even otherwise, the rule only reiterates the statutory provision in Section 38A(1) and (2). We also do not find any substance in the submission that the site was never allotted as a bank, and, therefore, it could be allotted as a petrol pump. The High Court upon perusal of the pleadings as well as annexureappended to the writ petition has recorded the following factsso far as the factual matrix is concerned, it is necessary to record that the site in question was originally earmarked as park/playground in 1984. This factual position stands acknowledged at the hands of the Bangalore Development Authority in paragraph 5 of its counter affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/play ground. The first of these is presently being used by the Bangalore Water supply and Sewerage Board. The second site, which is the one in question was earmarked for use as aSo far as the instant aspect of the matter is concerned, our attention has been invited to Annexure-C appended to the writ petition, wherein civic amenity site no.2 has been shown as earmarked forThe aforesaid Annexure-C came to be executed on 06.01.1996. Civil amenity site no.2 is indicted therein, as measuring 2195.35 sq. meters. In the column titledAnnexure-C specifiesIt is the contention of the petitioners that, civic amenity site no.2 which was earmarked exclusively for use ashas never undergone any change at the hands of the Bangalore Development Authority. Civic amenity site no. 3 is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connectionis evident that in fact, the site had been originally earmarked to be developed as a public park/playground in 1984. However, since the same has been converted to a residential area, respondents Nos. 4 to 14 have very fairly stated that it could not at this stage be restored to its original purpose without causing havoc in the lives of the residents. They have, therefore, not insisted that the site be restored to its original purpose.17. We also do not find any merit in the submission that the term civic amenities would permit BDA to change the reservation from one particular user to another without the necessary amendment in the development plan. This would be contrary to the law laid down by this Court in the case of B.S. Muddappa (supra).18. We also do not find any substance in the submissions that the High Court has wrongly distinguished the judgment of the earlier Division Bench of the High Court in Aicoboo Nagar Residents Welfare Association (supra). A perusal of the paragraph 10 of the aforesaid judgment clearly shows that in that case, the High Court considered the legality of allotment of civic amenity site no.3. There was, in fact, no change in the activity/purpose, as the site had not been reserved for any specific purpose. The other question was whether the lease in favour of the government company for opening of petrol and diesel outlet would fall within the definition of civic amenity. In the present case, it was not the case of the respondent nos. 4 to 14 that petrol pump is not a civic amenity, therefore, the site could not have been allotted to open a petrol pump. The grievance of the respondents (writ petitioners in the High Court) was that civic amenity site no.2 had been earmarked for a bank and could not be allotted for a petrol pump without making necessary amendment in the site. Therefore, the High Court has rightly distinguished the aforesaid judgment and not relied upon the same.