Purushottam v. State Of Karnataka And Others

S.S Nijjar, J.— Leave granted. These four appeals arising out of SLPs (C) Nos. 31690, 31695, 33184 and 33319 of 2011, impugn the judgment of a Division Bench of the Karnataka High Court rendered in Subramanya v. State of Karnataka WP No. 5428 of 2006, whereby the High Court has declared the allotment of Civic Amenity Site No. 2 to Bharat Petroleum Corporation (Respondent 3) for establishment of a petrol pump, null and void. The writ petitions have been allowed. The allotment dated 4-8-2005 made in favour of Respondent 3 has been set aside.

2. The facts as narrated in CA No. 10747 of 2013 arising out of SLP (C) No. 31690 of 2011 are as under: on 29-8-1990 a Notification was issued by the State of Karnataka Government under Section 2(bb)(vi) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as “the BDA, 1976 Act”) to the effect that the amenities such as liquefied petroleum gas godowns, retail domestic fuel depots, petrol retail outlets are the “civic amenities” for the purposes of the aforesaid Act.

3. Thereafter, the State Government issued another Notification on 29-4-1994, inviting objections or suggestions to the Revised Comprehensive Development Plan of Bangalore City Planning Area, prepared under the Karnataka Town and Country Planning Act, 1961, (Karnataka Act 11 of 1963), which had been provisionally approved by the Government.

4. On 5-1-1995, Site No. 2 was reserved for civic amenities (hereinafter referred to as “CA Site No. 2”). On 31-1-2000, the Bangalore Development Authority (hereinafter referred to as “BDA”) passed Resolution No. 28 of 2000 empowering the Chairman or the Commissioner to allot civic amenity site to any government body, State or Central Government undertaking. On 1-1-2001, BDA allotted CA Site Nos. 2 and 3 in HRBR Layout IIIrd Block each measuring 2195.35 sq m and 629.18 sq m in favour of the Bangalore Water Supply and Sewerage Board (hereinafter referred to as “Bwssb”) on lease for a period of 30 years for the purpose of service station and pump house.

5. On 28-3-2002, a detailed representation was submitted by one Mr Padmanabha Reddy on the subject: Requisition for Allotment of Civic Amenity Site Nos. 2 and 3 in HRBR III Block, Bangalore 43 as park. It was pointed out in this representation that the IIIrd 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.

6. The representation also mentions that the objectors had an opportunity to go through the Revised Comprehensive Development Plan, 2011 (RCDP) pertaining to District 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 finalised, 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.

7. The representationist also brought to the notice of BDA sentiments expressed by this Court in Bangalore Medical Trust v. B.S Muddappa (1991) 4 SCC 54. Particular attention of the Authority was drawn to paras 18, 19, 24, 25, 27, 37 and 48 with the comment that the observations made in the aforesaid paragraphs reflect the aspirations of Respondents 4 to 14 (petitioners in the High Court). Legally it was stated that the action of BDA is contrary to Section 38-A(2) of the BDA Act, 1976. It was ultimately stated that the land on which, now, reservoirs had been developed was beyond “redemption and resumption”. The other area earmarked for the park cannot 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.

8. On 9-2-2005, the State Government passed an Order for continuation of revised CDP 1995 till 2015. On 30-6-2005, Bharat Petroleum Corporation (Respondent 3) requested BDA to allot land for development of a retail outlet. On 4-8-2005, BDA allotted CA Site No. 2 in favour of Respondent 3.

9. Thereafter, on 7-10-2005, the lease deed was duly executed between BDA and Respondent 3 for a period of 30 years. The dealership licence was granted in favour of the wife of the appellant by Respondent 3 on 4-2-2006. Thereafter on 21-2-2006, BDA has approved the plan for establishment of petrol pump in favour of Respondent 3.

10. 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 21-2-2006 with a prayer to quash the allotment of CA Site No. 2 in favour of Respondent 3 for establishing a petrol pump and to convert the same to a park for the elderly and a playground for the young.

11. By the impugned judgment WP No. 5428 of 2006, the Division Bench of the Karnataka High Court on interpretation of Section 38-A concluded that the allotment was in violation of Section 38-A sub-section (2). The High Court has concluded that CA Site No. 2 at the time of its allotment to Respondent 3 was expressly earmarked for use as “bank”. Therefore, in terms of Section 38-A 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 for “bank”, it 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 with Section 38-A sub-section (2). The High Court further observed that even though both “bank” and “petrol pump” are civic amenities within the meaning of Section 2(bb) of the BDA Act, 1976, yet the mandate of Section 38-A 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.

12. We have heard the learned counsel for the parties.

13. It is submitted by the learned counsel that the High Court has erred in holding that any area of particular civic amenity cannot be subsequently changed to another user which also falls within the definition of a civic amenity. It is submitted by the learned Senior Counsel appearing for all the appellants that the High Court has failed to appreciate that the sites still remain allotted to a civic amenity. Merely because the user has been changed from public park to bank and now to petrol pump would not violate the provisions contained in Sections 38-A(1) and (2). It is submitted that since the notification was duly issued that petrol pump would be a civic amenity as provided under Section 2(bb)(vi) of the Act, there was no violation of Section 38-A(2).

14. The learned counsel for the appellants have submitted that in fact there is no resolution passed by BDA to show that the site in question has been earmarked for a bank. It is further submitted that the change of purpose or user for a particular piece of land as a civic amenity is permissible under Rule 3(1) of the Bangalore Development Authority (Civic Amenity Site) Allotment Rules, 1989 (hereinafter referred to as “the BDAA Rules, 1989”) as amended. According to the learned Senior Counsel, once the land is reserved as a civic amenity and allotted in favour of a government department or statutory authority of the Central Government, the BDA Rules, 1989 has no application. It was further submitted that the Division Bench has erred in distinguishing the earlier judgment of the Division Bench of the same Court in Aicoboo Nagar Residents Welfare Assn. v. Bangalore Development Authority ILR 2002 KAR 4705 in which it has been clearly laid down that “the use of site as a civic amenity for the distribution of petroleum products also would come within the scope of civic amenity”.

15. The learned counsel appearing for BDA and the State of Karnataka have supported the case pleaded by the appellants. The learned counsel appearing for Respondents 4 to 14, however, submitted that the High Court has correctly interpreted Sections 38-A(1) and (2) that any area reserved for a particular civic amenity cannot be diverted to any other civic amenity on the ground that civic amenity is a general term. According to the learned counsel, the judgment of the High Court is in consonance with the law laid down by this Court in B.S Muddappa (1991) 4 SCC 54. The aforesaid judgment has been subsequently followed by this Court in R.K Mittal v. State of U.P (2012) 2 SCC 232 It has been submitted that in view of the law declared by this Court, the impugned judgment of the High Court does not call for any interference.

16. We have considered the submissions made by the learned counsel for the parties.

17. 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 B.S Muddappa (1991) 4 SCC 54, this Court examined the entire issue wherein, it has been held that the legislative intent of the Bangalore Development Authority (Amendment) Act, 1991 [hereinafter referred to as “the BDA (Amendment) Act, 1991”], which came into force w.e.f 16-1-1991 is to prevent the diversion of the user of an area reserved for a public park or playground or civic amenity to another user.

18. The original Section 38-A of the BDA Act, 1976 has been substituted with the present Section 38-A w.e.f 21-4-1984, which reads as under:

“38-A. Grant of area reserved for civic amenities, etc.—(1) The Authority shall have the power to lease, sell or otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved.

(2) The Authority shall not sell or otherwise dispose off any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall be null and void:

Provided that where the allottee commits breach of any of the conditions of allotment, the Authority shall have right to resume such site after affording an opportunity of being heard to such allottee.”

19. Interpreting the aforesaid provision, this Court has held as under: (B.S Muddappa case (1991) 4 SCC 54, pp. 72 & 75-77, paras 19, 24-25 & 27)

“19. … This new Section 38-A, as clarified in the Statement of Objects and Reasons and in the Explanatory Statement attached to LA Bill 6 of 1991, removed the prohibition against lease or sale or any other transfer of any area reserved for a civic amenity, provided the transfer is for the same purpose for which the area has been reserved. This means that once an area has been stamped with the character of a particular civic amenity by reservation of that area for purpose, it cannot be diverted to any other use even when it is transferred to another party. The rationale of this restriction is that the scheme once sanctioned by the Government must operate universally and the areas allocated for particular objects must not be diverted to other objects. This means that a site for a school or hospital or any other civic amenity must remain reserved for that purpose, although the site itself may change hands. This is the purpose of sub-section (1) of Section 38-A as now substituted. Sub-section (2) of Section 38-A, on the other hand, emphasises the conceptual distinction between ‘public parks and playgrounds’ forming one category of ‘space’ and ‘civic amenities’ forming another category of sites. While public parks and playgrounds cannot be parted with by BDA for transfer to private hands by reason of their statutory dedication to the general public, other areas reserved for civic amenities may be transferred to private parties for the specific purposes for which those areas are reserved. There is no prohibition, as such, against transfer of open spaces reserved for public parks or playgrounds, whether or not for consideration, but the transfer is limited to public authorities and their user is limited to the purposes for which they are reserved under the scheme. The distinction is that while public parks and playgrounds are dedicated to the public at large for common use, and must therefore remain with the State or its instrumentalities, such as BDA or a Municipal Corporation or any other authority, the civic amenities are not so dedicated, but only reserved for particular or special purposes. …

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24. Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1980) 4 SCC 162, (1981) 1 SCC 608, (1985) 3 SCC 545, 1988 Supp SCC 734

25. Reservation of open spaces for parks and playgrounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation. 438 US 104 (1978), 416 US 1 (1974), 272 US 365 (1926), (1961) 1 WLR 683, (1961) 2 All ER 145

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27. The statutes in force in India and abroad reserving open spaces for parks and playgrounds are the legislative attempt to eliminate the misery of disreputable housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. As stated by the US Supreme Court in Berman v. Parker 348 US 26 (1954): (L Ed pp. 37-38 : US pp. 32-33)

‘… They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

… The concept of the public welfare is broad and inclusive. … The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values.’ (Per Douglas, J.)”

20. In our opinion, the aforesaid observations are a complete answer to all the submissions made by the learned counsel for the appellants.

21. This apart on the interpretation of Sections 38-A(1) and (2), the inescapable conclusion is that under Section 38-A(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 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-A 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 cannot be permitted to override the statutory provision contained in Sections 38-A(1) and (2). Even otherwise, the Rule only reiterates the statutory provision in Sections 38-A(1) and (2).

22. 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.

23. The High Court upon perusal of the pleadings as well as Annexure C appended to the writ petition has recorded the following facts:

“Insofar 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 Para 5 of its counter-affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/playground. 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 6-1-1996. Civic Amenity Site No. 2 is indicted therein, as measuring 2195.35 sq m. 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.”

24. Upon consideration of the submissions of the learned counsel for the parties, the High Court has concluded:

“We are satisfied that Civic Amenity Site No. 2, at the time of its allotment to Respondent 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, 1976 it could not have been leased, sold or otherwise, transferred for purpose other than the one ‘… for which such area is reserved’. Since the civic 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’.”

25. 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 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.

26. 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 B.S Muddappa (1991) 4 SCC 54.

27. 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 Assn. ILR 2002 KAR 4705 A perusal of para 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 Respondents 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.

28. We, therefore, find no merit in the appeals and the same are hereby dismissed.