Case: Purushotham Vs. State Of Karnataka

On 29th August, 1990 a Notification was issued by the State of Karnataka Government under Section 2bb(vi) of the Bangalore Development Authority Act, 1976 (hereinafter referred to asto the effect that the amenities such as liquefied petroleum gas godowns, retail domestic fuel depots, petrol retail outlets are theor the purposes of the aforesaid Act.• Thereafter, the State Government issued another Notification on 29th April, 1994, inviting objections or suggestions to the Revised Comprehensive Development Plan of Bangalore City Planning Area, prepared under Karnataka Town and Country Planning Act, 1961, (Karnataka Act 11 of 1963), which had been provisionally approved by the Government.• On 5th January, 1995, Site No.2 is reserved for civic amenities (hereinafter referred to asl; On 31st January, 2000, Bangalore Development Authority (hereinafter referred to aspassed Resolution No. 28 of 2000 empowering the Chairman or the Commissioner to allot Civil Amenity Site to any Government Body, State or Central Government undertaking.• On 1st January, 2001, BDA allotted CA Site No.2 and 3 in HRBR Layout III Block each measuring 2195.35 sq. mtrs. and 629.18 sq. mtrs. in favour of Bangalore Water Supply and Sewerage Board (hereinafter referred to ason lease for a period of 30 years for the purpose of service station and pump house.• On 28th March, 2002, a detailed representation was submitted by one Mr. Padmanabha Reddy on the subject : Requisition for Allotment of Civic Amenity Site No.2 & 3 in HRBR UI Block, Bangalore – 43 as park. It was pointed out in this representation that the III Block of the HRBR Layout is a residential layout, with homes situated, chock-a-block, with absolutely no ventilation space. It was pointed out that in these circumstances, the provision for a park/ventilation space is a crying-need of the locality. The representation also mentions that the objectors had an opportunity to go through the Revised Comprehensive Development Plan – 2011 (RCDP) pertaining to District No.7, which clearly showed that, a squarish block of land, situated on the western side of Civic Amenity site wherein the BWSSB has already housed the Twin Ground Level reservoirs had been earmarked for a park. The other surprise in store in the RCDP was the earmarking of CA Site No.2, which was the bone of contention, as Commercial Area/Zone. It is pointed out that in reality, much before 1995, when the RCDP had allegedly been finalized, the BDA had already accomplished the task of converting this squarish block of land into residential sites and either allotted or auctioned such sites. The land had been clearly shown as earmarked for a park or a playground. Another similar block of land, which was also earmarked to be developed as a park has continued to be used as a burial ground. The representationist also brought to the notice of the BDA sentiments expressed by this Court in the case of Bangalore Medical Trust Vs. B.S. Muddappa & Ors. [(1991) 4 SCC 54] Particular attention of the authorities was drawn to Paragraphs 18, 19, 24, 25, 27, 37 and 48 with the comment that the observations made in the aforesaid paragraphs reflect the aspirations of the respondent Nos. 4 to 14 (petitioners in the High Court). Legally it was stated that the action of the BDA is contrary to Section 38A(2) of the BDA Act, 1976. It was ultimately stated that the land on which, now, reservoirs had been developed was beyondThe other area earmarked for the park can not be used as a park since it has already been used as a graveyard. Their only intention was to save the remaining part which has now been allotted for the use as the petrol pump.• On 9th February, 2005, the State Government passed an order for continuation of revised CDP 1995 till 2015.• On 30th June, 2005, Bharat Petroleum Corporation (respondent No.3) requested BDA to allot land for development of a retail outlet.• On 4th August, 2005, BDA allotted CA Site No.2 in favour of respondent No.3.• Thereafter, on 7th October, 2005, the lease deed was duly executed between BDA and respondent No.3 for a period of 30 years. Dealership licence was granted in favour of wife of the appellant by respondent No.3 on 4th February, 2006.• Thereafter on 21st February, 2006, BDA has approved the plan for establishment of petrol pump in favour of respondent No.3. Aggrieved by the aforesaid action, Writ Petition No. 5428 of 2006 and others were filed in public interest to challenge the decision of BDA dated 21st February, 2006 with a prayer to quash the allotment of CA Site No.2 in favour of respondent No.3 for establishing a petrol pump and to convert the same to a park for the elderly and a playground for the young.By the impugned judgment, the Division Bench of Karnataka High Court on interpretation of Section 38A concluded that the allotment was in violation of Section 38A sub-section (2). The High Court has concluded that CA Site No.2 at the time of its allotment to respondent No.3 was expressly earmarked for use asTherefore, in terms of Section 38A of the BDA Act, 1976 could not have been leased, sold or otherwise transferred for a purpose other than the one for which such area is reserved. Since the site in question was earmarked/reserved forit could not have been allotted for use as a petrol pump. The High Court also held that the allotment of the site was null and void as it was not in consonance of Section 38A sub-section (2). The High Court further observed that even though bothare civic amenities within the meaning of Section 2(bb) of the BDA Act, 1976, yet the mandate of Section 38A is clear and unambiguous. It is for the very civic amenity, for which the area is reserved, for which it has to be put to use.

Reasoning:
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.