Aicoboo Nagar Reside... v. Bangalore Developmen..., Karnataka High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

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Case Number

Writ Petition Nos. 38039/2001 c/w 4871/2001

Attorney(S)

Sri M.I Arun, Advocate for Petitioner
Sri P.S Rajagopal, Advocate for Petitioner
Sri S.A Nazeer, Advocate for R1
Sri Ram Mohan Reddy, Advocate for R2

Judges

N.K Jain, C.J
V.G Sabhahit, J.

Acts

Section 2(bb) of the Bangalore Development Authority Act, 1976 (for short the BDA Act)
ARTICLE 226 CONSTITUTION OF INDIA
sub-clause (vi) of Clause (bb) of Section 2 of BDA Act.

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Smart Summary

Factual and Procedural Background

Two writ petitions under Article 226 filed as Public Interest Litigations challenge a lease granted by the Bangalore Development Authority (first respondent) in favour of Bharath Petroleum Corporation (second respondent) for Civic Amenity Site No. 3 (Part), BTM I Stage, I Phase Layout, Bangalore. The petitioners alleged that opening a petrol and diesel outlet is not a civic amenity, that the allotment rules were not followed (no public auction), and that the second respondent was constructing in violation of the lease and sanctioned plans.

The first respondent denied illegality, stated the lease for 30 years was executed on 13.10.2000 after receipt of a lump sum of Rs. 35,45,573/-, and maintained the allotment complied with law, including that "civic amenity" may include a petrol outlet and the site was not reserved for any specific civic amenity after plan modification. The second respondent likewise denied wrongdoing, stating it is a Government of India company, the lease was lawful, and construction followed the sanctioned plan.

The Court heard counsel for all parties and disposed of both petitions by a common order.

Legal Issues Presented

Whether opening of a petrol and diesel outlet constitutes a "civic amenity" within the meaning of Section 2(bb) of the Bangalore Development Authority Act, 1976.
Whether the lease could lawfully be granted to the second respondent (a Government company) without a public auction and whether the Civic Amenity Site Allotment Rules required auction in this case.
Whether alleged violations of the lease conditions or sanctioned plan justify quashing the lease in the present proceedings.

Arguments of the Parties

Petitioners' Arguments

Opening a petrol and diesel outlet is not a "civic amenity" as defined in Section 2(bb) of the BDA Act; at best, a notification might cover a petrol outlet but not petrol and diesel together.
The lease could not be granted to the second respondent because it is not an "institution" and the allotment was made without a public auction contrary to the rules.
The second respondent is erecting a commercial complex in violation of the lease terms and the sanctioned plan; therefore the lease should be quashed.

First Respondent (Bangalore Development Authority) Arguments

Notification was issued under sub-clause (vi) of Clause (bb) of Section 2 of the BDA Act, and the grant was made in exercise of that power.
Although the second respondent is a Government Company and not an "institution" as pleaded by petitioners, the lease was made in accordance with law.
Any alleged violations of lease conditions have not been brought to the notice of the first respondent (BDA) for action.

Second Respondent (Bharath Petroleum Corporation) Arguments

Second respondent is a Government of India Company and the lease was granted in accordance with law.
Construction is being carried out in accordance with the sanctioned plan.
Services at the outlet include conveniences—ATM, browsing centre, grocery, canteen, rest room—envisaged as part of facilities for the motoring public; petitioners failed to prove invalidity of the lease.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court considered the pleadings and materials on record and proceeded through the following analysis:

Chronology and documentary facts: the Court noted that the second respondent applied for grant of the civic amenity site for a petrol and diesel outlet on 9.12.1999; the plan had been modified on 13.12.1998; the BDA passed a resolution on 31.1.2000 to lease the site (measuring East-West 60.96 m and North-South 36.58 m; total 2229.92 sq. m); and a 30-year lease deed was executed on 13.10.2000 on receipt of Rs. 35,45,573/-. The second respondent obtained sanctioned plans and commenced construction.
Statutory interpretation and notification: the Court accepted the BDA's position that Section 2(bb)(vi) of the BDA Act empowers the Government to issue notifications specifying civic amenities, and recorded that such a notification was issued on 29.8.1990. The Court held that the mere absence of the specific word "diesel" in the notification does not vitiate the lease because the term "petroleum outlet" is used in common parlance and would encompass the outlet at issue.
Effect of plan modification: the Court found that after modification of the plan on 13.12.1998, Civic Amenity Site No. 3 was not reserved for any specific civic amenity, undermining petitioners' contention that the site was reserved for a public purpose incompatible with a petrol outlet.
Application of allotment rules to a Government company: the Court held that because the second respondent is a Government company, the Civic Amenity Site Allotment Rules did not require a public auction in this case, and the absence of an auction did not render the allotment invalid.
Standard for issuing relief in PIL: the Court observed that it may issue directions in cases of gross violation of fundamental rights or issues touching the Court's conscience, but not for personal gain, publicity, or political advantage. Finding no such violation, the Court concluded petitioners failed to show that the lease infringed fundamental or public legal rights.
Disputed fact issues on lease/plan violations: the Court treated allegations of violation of lease conditions or the sanctioned plan as disputed questions of fact unsupported by relevant material in the petitions. It held these matters are to be investigated by a competent fact-finding authority rather than decided in the present writ proceedings.
Maintainability and ancillary issues: because the Court declined to grant relief, it found no need to decide whether the PILs were properly maintainable by a Secretary acting without an express authorization resolution.

Holding and Implications

Holding: The Court dismissed the writ petitions; in the Court's words, the petitioners are "not entitled to any relief in these PIL petitions and accordingly, these PIL petitions are DISMISSED."

Implications and direct effects:

The impugned lease to the second respondent was not quashed and remains in effect pursuant to the executed lease deed (30 years, executed 13.10.2000, lump sum consideration Rs. 35,45,573/-), subject to any lawful action by the first respondent.
The Court found petitioners failed to demonstrate violation of fundamental rights or any legal right of the public that would justify judicial intervention in these PILs.
The Court did not decide whether the PILs were maintainable by a Secretary lacking an explicit authorization; it held that question unnecessary to resolve given dismissal.
The Court left open the first respondent's power to investigate and take action, stating that dismissal "will not preclude the first respondent from considering as to whether there is any violation of condition of lease or sanctioned plan" and that the BDA is "free to take action in accordance with law."
The order recorded "Costs made easy," indicating costs were addressed in favor of respondents as part of the dismissal (the opinion does not specify amounts).

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Aicoboo Nagar Residents Welfare Association And Another v. Bangalore Development Authority, Bangalore And Another

Jain, C.J:—

These two Writ Petitions under Article 226 of the Constitution of India, as Public Interest Litigation petitions challenge the lease granted by first respondent-Bangalore Development Authority in favour of Bharath Petroleum Corporation, the second respondent, in respect of Civic Amenity Site No. 3 (Part), BTM I stage, I Phase Layout, Bangalore. Both petitions involve common questions of law and fact and are disposed of by this common order.

2. It is averred in the petition that lease of Civic Amenity site in favour of second respondent is illegal as opening of petrol outlet is not a Civic Amenity, and the second respondent is not entitled to allotment of civic amenity site. It is stated that rules of allotment have not been followed while leasing the site as no public auction was held and second respondent is putting up construction in violation of agreement of lease and sanctioned plan and hence lease is liable to be quashed.

3. The first respondent has filed objection statement denying averment made in the petition and has stated that on application filed by second respondent which is a Government Company lease is granted for 30 years and lease deed for 30 years has been executed on 13.10.2000 by receiving lump sum amount of Rs. 35,45,573/- subject to terms and conditions mentioned therein and allotment has been made in accordance with law as civic amenity includes opening of petrol outlet and as per plan modified on 13.2.1998 site was not reserved for any specific civic amenity and hence petitions filed in the garb of PIL are liable to be dismissed.

4. The second respondent has filed statement of objections denying averments made in the Writ Petitions regarding illegality of lease deed and it is stated that second respondent is a Government of India Company and lease has been granted in accordance with law and it is putting up construction in accordance with sanctioned plan and petitions are liable to be dismissed.

5. Heard the learned Counsel appearing for the petitioner in both the petitions and the learned Counsel for the respondents.

6. No doubt in an appropriate case, this Court can issue directions if there is gross violation of fundamental rights or if the issue touches the conscience of the Court but not for personal gain or publicity or political gain.

7. The learned Counsel appearing for the petitioners submitted that, opening of petrol and diesel outlet is not a civic amenity within the definition of civic amenity in Section 2(bb) of the Bangalore Development Authority Act, 1976 (for short “the BDA Act”) and even assuming that there is notification, only opening of petrol outlet would be civic amenity and not petrol and diesel outlet. Further argument of the learned Counsel is that, lease could not be granted to second respondent which is not an institution and that too without public auction and that the second respondent is putting up a commercial complex by violating conditions of lease and hence lease is liable to be quashed.

8. The learned Counsel appearing for the first respondent submitted that notification has been issued in exercise of power under sub-clause (vi) of Clause (bb) of Section 2 of BDA Act. The second respondent is not an institution but is a Government Company and lease is made in accordance with law and any violation-of conditions of lease is not brought to the notice of the first respondent.

9. The learned Counsel for the second respondent submitted that second respondent is a Government Company and lease has been granted in accordance with law and that second respondent is putting up construction in accordance with sanctioned plan. He has further submitted that while providing for supply and sale of petroleum products it has also envisaged providing of conveniences to customers and facilities like ATM Centre, Browsing Centre, grocery store, canteen, rest room are provided to motoring public and that since petitioners have failed to prove that lease is invalid, they are not entitled to any reliefs in these petitions.

10. We have considered the arguments of the learned Counsel for the parties and perused the materials on record which show that second respondent which is a Government of India Company had made an application for grant of civic amenity site on lease for opening petrol and diesel outlet on 9.12.1999 In view of plan as modified on 13.12.1998, civic amenity site 3 had not been reserved for any specific purpose and since second respondent is a Government Company, first respondent passed a resolution on 31.1.2000 to lease said site measuring East to West 60.96 meters and North to South 36.58 meters and in all 2229.92 meters to the second respondent for opening petrol and diesel outlet and lease deed was executed on 13.10.2000 granting lease for 30 years by receiving lump sum amount of Rs. 35,45,573/- subject to terms and conditions mentioned in the deed and second respondent after obtaining sanctioned plan is putting up constructions. The contention of the learned Counsel for petitioners cannot be accepted as Section 2(bb)(vi) enables Government to issue notification specifying civic amenity and in exercise of said power notification was issued on 29.8.1990 Mere fact that diesel is not specifically mentioned would not vitiate grant of lease for opening outlet as the term “Petroleum outlet” is used in common parlance. In view of modification of plan on 13.2.1398 the contention that C.A Site 3 was reserved for public purpose cannot be accepted. Since second respondent is a Government Company, in view of Civic Amenity Site Allotment Rules question of auction would not arise. In view of the above, it is clear that petitioners have failed to prove that impugned action of lease of site to second respondent violates fundamental rights or any legal right of the public. Since we are issuing no direction in these PILS, it is not necessary to go into the question whether these PILS are maintainable by a Secretary without any resolution that the Secretary is duly authorised to file these PILs.

11. The contention as to whether there is a violation of conditions of lease or sanctioned plan, is a disputed question of fact which cannot be gone into in these petitions that too in the absence of relevant material in that behalf and these facts can be considered by a competent fact finding Authority and accordingly, we hold that petitioners are not entitled to any relief in these PIL petitions and accordingly, these PIL petitions are dismissed. Costs made easy. However the dismissal of these petitions will not preclude the first respondent from considering as to whether there is any violation of condition of lease or sanctioned plan and it is free to take action in accordance with law.

Aicoboo Nagar Reside... v. Bangalore Developmen...