Bopanna, J.:— These three appeals are from the order of Puttaswamy, J., in W.P No. 13115/1979. The appellant in W.A No. 1391 of 1979 is the Holy Saint Education Society (hereinafter called the society) which was Respondent-3 in the writ petition. The appellant in W.A No. 752/80 is the corporation of the City of Bangalore (hereinafter referred to as the corporation) which was respondent-2 in the writ petition. The appellant in W.A No. 848 of 1980 is the State of Karnataka which was respondent-1 in the writ petition.
2. In the writ petition, the grant of lease of a plot of land in ‘T’ Block, Jayanagar, Bangalore, to the society for 50 years, had been impugned on the ground that plot formed a part of a playground set apart for children. The learned single judge quashed the proceedings of the Administrator of the Corporation dated 24th October 1976 on subject No. 28 and the orders of the state Government dated 3rd May 1977, 20th January 1978 and 3rd July 1978 and held that the registered lease dated 3rd June 1977 executed by the corporation in favour of the society in pursuance of the aforesaid orders of the State Government, was void and uneforceable. He further directed the Corporation to maintain and use that plot as a play-ground and not to dispose of it to any other person for any other purpose.
3. A few material facts which are not in dispute may be briefly stated at the outset:
The city of Bangalore Improvement Act, 1945, (Mysore Act No. V of 1945) (in short, the Improvement Act) was enacted for the improvement of the City of Bangalore and to provide space for its future expansion. That Act provided for constituting a Board of Trustees (hereinafter called the Board) to carry out the objects of the Act. Section 14 of that Act empowered the Board, inter alia, to draw up schemes for improvement and expansion of the areas to which that Act applied. Section 15 empowered the Board to provide in such scheme, inter alia public requirements. Section 17 provided for the Government approving, with or without modification, any improvement scheme drawn up by the Board. Section 18 provided for declaration and publication of a scheme approved by the Government. Sub-section (2) of section 18 provided for modification of such scheme with the sanction of the Government. One of such improvement schemes was for forming a residential extension called ‘Jayanagar Extension’ on the out skirts of Bangalore City. In one of the blocks in that extension Marked as IV ‘T’ Block, a plot of land bearing No. 17, measuring 150′×350′, was reserved as children playground and was being used as such ever since its formation. By virtue of Notification No. PIM 77 GCO 61 dated 22nd September 1962 (Produced as Annexure-A with the writ petition) issued by the state Government under clause (9) of section 3 of the City of Bangalore Municipal Corporation Act, 1949 (in short, the Bangalore Corporation Act). Jayanagar extension came within the jurisdiction of the Bangalore Corporation.
To the request made by the Bharat Scouts and Guides for allotment of the aforesaid site, the Board issued an endorsement dated 10th September 1974 (Produced as Annexure-C to the writ petition) turning down the request on the ground that site had been reserved for playground for Children.
The Improvement Act was replaced by the Bangalore Development Authority Act, 1976 (hereinafter referred to as the B.D.A Act) which was deemed to have come into force on 20th December 1975. The main object of the B.D.A Act is development of the City of Bangalore and areas adjacent thereto.
Section 16 of the B.D.A Act also provides, inter alia, that every development scheme shall provide for public requirements.
Section 76 of the B.D.A Act providing for repeal of the Improvement Act, provides, inter alia, that all action taken under the repealed Act, shall be deemed to have been taken under the corresponding provisions of the B.D.A Act.
The Society approached the corporation with a letter of recommendation from one F.M Khan, then a sitting member of the Karnataka Legislative Council for allotment of the playground in ‘T’ Block referred to above. At that time, the Bangalore Corporation had been superseded under section 47-A of the Bangalore Corporation Act and the Administrator appointed by the Government, was exercising the powers of the Corporation. By his proceedings dated 24th October 1976, the Administrator gave his approval for the lease of the said site to the society for a period of fifty years on an annual rent of Rs. 1,000 as there was no objection from the B.D.A The Government, by its order dated 3rd May 1977 (produced as Annexure-E to the writ petition) accorded sanction to the aforesaid proceedings of the Administrator subject to the condition that the society should complete the construction of the school building within a period of three years and that the building should conform to the building bye-laws and provision should be made for leaving adequate space as may be indicated by the commissioner for use as a play-ground for the children of the school. Thereafter, on 3rd June 1977, a lease deed was executed by the Corporation in respect of the aforesaid site in favour of the society incorporating the terms and conditions imposed by the Government while according such sanction and the lase deed was registered on the very next day.
On the strength of the aforesaid lease, the society commenced construction of the school building. At the stage, the residents of Jayanagar agitated for cancellation of that lease. The Jayanagar Welfare League and three residents of Jayanagar filed a suit, Original suit No. 1755 of 1977 on the file of the First Munsiff, Bangalore, and obtained a temporary injunction restraining the Society from proceeding with the construction of the building and from interfering with the rights of the residents of that area. In that suit, the Corporation was also impleaded as a defendant. That suit is still pending in that Court. In the meanwhile, the Administrator of the Corporation, by his letter dated 24th September 1977, recommended to the Government to cancel its order dated 3rd May 1977 (Annexure-E) according sanction for leasing the said site to the Society. Accepting his recommendation, the Government, by its order dated 20th January 1978 (Produced as Annexure-F to the writ petition), cancelled its earlier order dated 3rd May 1977 (Annexure-E) by which sanction was accorded for the lease. However, on the representation made by the Society, the Government, by its order dated 3rd July 1978 (produced as Annexure-D to the writ petition), withdrew its order dated 20th January 1978 (Annexure-F) by which it had cancelled its first order dated 3rd May 1977 (Annexure-E). The order of the Government dated 3rd July 1978 reads:
“Government order No. HUD 368 MNG 77, dated 20th January 1978 is hereby withdrawn with the observation that the Bangalore City corporation should hand over Possession of the site to the Holy Saint Education society imposing the conditions already laid down in the Government order No. HMA 43 MNG 77, dated 7th May 1977.”
Pursuant to the aforesaid order of the Government, the Corporation handed over on 7th August 1979 the possession of the aforesaid site to the Society. Thereafter, the writ petition out of which the present appeals arise, came to be presented. The main grounds urged by the contesting respondents in that petition, were these:
(i) Site No. 17 had always been reserved as playground for children as a part of an approved scheme of Jayanagar Extension under the Improvement Act and after it vested in the Corporation it was obligatory on the Corporation to maintain it as a play ground for children.
(ii) The rejection of the earlier application of the Bharath Scouts and Guides for the grant of the same, site on the ground that it was reserved for a play-ground for children, made it abundantly clear that the corporation was under a legal obligation to reserve that site as a playground only.
(iii) The impugned order (Exhibit-D) dated 3rd July 1978 was illegal since it did not comply with the requirements of the provisions of the B.D.A Act.
In the writ petition, no return had been filed on behalf of the State Government. But, the learned Government Advocate appearing for the State Government, sought to defend the action of the Government adopting the returns filed by the Corporation and the Society.
The defence on behalf of the Corporation was that under sub-section (6) of section 73 of the Bangalore Corporation Act and under sub-section (6) of section 176 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the corporations Act), it was competent for the Corporation, with the previous sanction of the Government, to lease the aforesaid site for a period exceeding five years and that since such prior sanction of the Government had been obtained, the, lease did not suffer from any legal infirmity.
In the return filed by the society, it was pleaded that the said lease was for the purpose of establishing a school which is a civil amenity and that the society had made a provision for keeping a portion of the aforesaid site vacant to be used as a play-ground and hence the impugned lease did not violate any of the provisions of the improvement Act or the Corporation Act.
The learned single judge held:
(i) The said site which was earmarked or reserved as a playground, vested in the Corporation in the year 1962 as a playground.
(ii) Though the Bangalore Corporation Act did not specify what were obligatory functions and what were discretionary functions of the Corporation, in interpreting the provisions of the Bangalore Corporation Act, the provisions made in the subsequent Act, i.e, the Corporation Act, would be a safe-guide. It would be reasonable to hold that the provisions of the corporation Act would determine the obligatory functions of the Corporation under the earlier Act, namely, the Bangalore Corporation Act also. While promotion of Education is a discretionary function of the corporation under sub-section (23) of section 59, providing playgrounds is an obligatory function of the Corporation under sub-section (25) of section 58 of the Corporations Act and hence the obligatory function should prevail over the discretionary function of the corporation.
(iii) As the school to be established by the Society, is likely to be private concern, interested in making money like most private educational institutions, the object of the lease could not be regarded for ‘municipal affairs’ giving that term its widest meaning.
(iv) Under section 71-A which was inserted in the Bangalore Corporation Act by section 4 of the City of Bangalore Municipal Corporation (Amendment) Act, 1970, all public parks and playgrounds which vested in the Corporation, should be held and applied by it as trustee subject to the provisions of that Act as public parks and playgrounds and the corporation being a trustee of playground, could not lease it for a different purpose. In this view, it was unnecessary to examine the true scope of the approved scheme of Jayanagar Extension.
The learned Judge also rejected the plea of the corporation and the society that as spreading of education is a laudable object, the court the court should decline, to exercise its discretionary jurisdiction even if the impugned lease was not strictly according to law. The learned Judge observed that in the metropolis of Bangalore, playground for children was as much a necessity as their education and that the preservation of playgrounds was an obligatory function of the corporation.
4. Mr. V. Krishna Murthy, learned counsel for the society, submitted leading arguments in these appeals and learned counsel for the Corporation and the State Government adopted them.
5. After the commencement of the arguments in these appeals, a number of persons claiming to be residents of Jayanagar extension, made an application for being impleaded as parties on the ground that they had sufficient interest in the subject matter of these appeals. Though we declined permission for their being impleaded as parties at this belated stage, we permitted Mr. S.K Venkataranga Iyengar, their counsel, to intervene on their behalf. But, he was content to adopt the arguments of Mr. Narasimha Murthy, learned counsel for the contesting respondents.
6. Though many of the contentions urged by Mr. Krishna Murthy had not been taken up before the learned single judge, we permitted him to urge them, since they are all questions of law. Mr. Narasimha Murthy did not also object to such new grounds being urged in these appeals.
7. In these appeals, the learned counsel for the parties submitted that they would rest their contentions on the provisions of the Bangalore Corporation Act and not the Corporations Act. Hence, it is not necessary for us to test the correctness of the finding of the learned Judge based on considerations of discretionary functions and obligatory functions of the Corporation under the corporations Act.
8. It was also not disputed by learned counsel that the aforesaid site formed a part of the vacant land which had been set apart as a playground in the improvement scheme of Jayanagar extension which was prepared by the Board and approved by the Government and that site was not specially reserved by the Government.
9. We will now set out the relevant provisions of the Bangalore Corporation Act.
Section 71-A reads:
“71-A. Corporation property.—All property of the nature herein specified, and not being specially reserved by the 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 the Government, which may become vested in the Corporation, be under it direction, management and control and shall be held and applied by its 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, slaughter houses, manure and night-soil depots and public buildings of every description.”
Section 73 reads:
“73. Disposal of property and interest therein.—(1) Subject to the provisions of section 79, the commissioner may dispose by sale or exchange of any corporation movable property the value of which does not exceed five hundred rupees in each instance, or grant for any term not exceeding twelve months a lease of any corporation immovable property or a lease or concession of any right of fishing or grazing or of gathering and taking fruit and the like:
Provided that every such disposal, lease or concession made or granted by the commissioner shall be reported to the standing committee within fifteen days.
(2) ……………………………………
(3) ……………………………………
(4) ……………………………………
(5) The commissioner may lend or let out on hire any corporation movable property on such conditions and for such periods as may be specified in regulations made by the standing committee in that behalf.
(6) Notwithstanding anything contained in this Act:—
‘(a) no movable property exceeding two thousand rupees in value shall be sold otherwise than by public auction;
(b)(i) no property whether movable or immovable of whatever, value shall be transferred free of cast or for an upset price;
(ii) no lease of any immovable property exceeding five years shall be granted; or
(iii) no immovable property shall be disposed of by sale or by other transfer:
except with the previous sanction of the Government’.
10. Mr. Krishna Murthy submitted thus: Under Section 71-A of the Bangalore Corporation Act, two categories of properties which are not specially reserved by the Government, vest in the corporation; the first category consists of the those of the nature specified in clauses (a), (b) and (c) of that section and the second category consists of all other property of whatsoever nature or kind. The aforesaid site which came under the first category, not merely vested in, but actually belonged to, the Corporation, therefore, the site could be disposed of by the corporation under section 73 of the Act. Since the previous sanction of the Government had been obtained, there was no other limitation or restriction on the power of the corporation to lease the site. Even assuming that the site came within the first category of property under Section 71-A of the Bangalore Corporation Act, the corporation as trustee of that site could dispose of that site for any of the purposes for which the corporation could incur expenditure under Schedule IV to that Act. Education is one of the objects for which the Corporation could incur expenditure.
11. On the other hand, Mr. Narasimha Murthy contended that the said site had been specially reserved as children's playground before it was transferred to the Corporation. Even if the site vested in the Corporation, it (the Corporation) was under an obligation as a trustee to maintain the site for the same purpose for which it was reserved and could not divert it for being granted to a private person or a private organisation. He maintained that the society was not a public institution, that it could admit such students as it liked, it could collect high capitation fee or donations from parents who wanted to admit their children to the school to be contructed in the site. That the Society could charge high rate of fee for students to be admitted to its school and that there was no certainty or even likelihood that the students of the locality would be admitted to that school. In other words, his contention was that the grant of the site to the society could not be regarded as utilisation of the site for a public purpose and much less for the purpose for which it had been reserved.
12. As stated earlier, under the improvement scheme drawn up by the Board and approved by the Government, the said site had been reserved for children's playground. Unless that scheme was modified in accordance with law, the site could not be utilised for any purpose. Even after the site came within the jurisdiction of corporation by virtue of the notification issued by the Government under clause (9) of Section 3 of the Bangalore Corporation Act, and the site vested in the Corporation under section 71-A of that Act, the corporation was under an obligation to retain that site as children's playground and could not divert it for any other purpose and much less grant it to a private person or organisation, whether by sale, gift or lease, unless the aforesaid scheme was modified according to law. In our opinion, the corporation had rightly turned down the request of Bharat Scouts and Guides for allotment of that site on the ground that it had been reserved as playground for children, though Bharat Scouts and Guides is a public organisation whose doors are open to all boy scouts and girl guides. We do not see any justification for the Corporation changing its view and granting on lease the site to the society. The mere fact that the Bangalore Corporation could incur expenditure on education, would not be a justification for diverting a site which had been set apart for playground for children, for leasing it (the site) for construction of a school by a private organisation.
13. Nor can the grant of lease of the site to the Society be regarded as utilisation of the site for any public purpose. It is a matter of common knowledge that taking advantage of keen demand for admission to schools and colleges in big cities and paucity of seats in schools and colleges run by the Government and local authorities, private educational institutions are collecting from students or their parents large amounts of capitation fee which is euphemistically called donation, at the time of admission and also high rates of monthly fee; let alone children of poor people, even children of middle class people find these private institutions beyond their reach. In the present case, while granting the lease, no restriction or limitation is imposed on the society's right to collect whatever capitation fee or tuition fee it chooses to collect. Nor is any obligation imposed on the society to admit to its school the children residing in that locality.
14. However, Mr. Krishna Murthy invited our attention to the condition contained in the Government order according sanction for the lease, to the effect that provision should be made for leaving adequate space as may be indicated by the commissioner for use as playground for children of the school. Mr. Krishna Murthy argued that this condition would ensure that the site is utilised for the purpose for which it was reserved, namely, as playground for children of the school and that therefore the impugned grant of lease, did not call for interference.
15. We find it difficult to accept the above contention, first because the order of the Government sanctioning the lease, permits a part of the playground being built upon; secondly because the Government Order requires the remaining part of the site to be utilised as a playground for the children of the school and not children in general. Thus a part of the site will be diverted from a playground to a building site and even the remaining part will not be available to children in general of the locality.
16. We agree with the view taken by the learned single Judge that the Corporation which held the site as a trustee, could not lease it for a purpose different from the one for which it had been reserved. The learned single judge rejected rightly, in our opinion, the plea advanaced on behalf of the Society and the Corporation that the Court should decline to exercise the discretionary jurisdiction as the lease of the site is for spreading education. The learned single judge rightly held that in the overcrowded metropolis of Bangalore, playground for children was as much a necessity as schools.
17. In K. Ramdas Shenoy v. The Chief Officer, Town Municipal Council, Udipi . 1974 2 SCC 506, the resolution of Udipi Municipality according sanction for conversion of a non-residential building into a Cinema theatre had been impugned. Reversing the judgment of the High Court, the, Supreme Court quashed that resolution on the ground that it was in contravention of the Town Planning Scheme approved by the Government under the Madras Town Planning Act, under which the area in which the cinema theatre, was sought to be located, had been set apart for residential purpose only. The aforesaid decision of the Supreme Court supports the contention of Mr. Narasimha Murthy that a site which had been reserved as playground for children under the improvement scheme, could not be leased for construction of a school building.
18. Mr. Krishna Murthy next contended that the Government had no power to cancel the sanction accorded by it for leasing the site and that the order of the Government dated 20th January 1978 (produced as Annexure-F in the writ petition) by which it cancelled its earlier order dated 5th May 1977 (produced as Annexure-E in the writ petition) was also violative of principles of natural justice inasmuch as the Government did not hear the Society before it made that order revoking its earlier order according sanction for leasing the site to the society.
19. There is considerable force in the contention that the Government order according sanction for leasing the site in favour of the society, which conferred a benefit on the society, could not be revoked by the Government without notice to the Society and without hearing it. But, the Government subsequently withdrew its order dated 20th January 1978 by which it cancelled its earlier order according sanction for the lease. Hence, it becomes academic to consider whether the Government had the power to cancel its earlier order sanctioning the lease of the site and whether its order dated 20th January 1978 cancelling its earlier order dated 3rd May 1977, was violative of principles of natural justice and hence void.
20. It was also contended by Mr. Krishna Murthy that the prayer in the writ petition, namely, to declare as invalid the Government order dated 3rd July 1978 (produced as Annexure-D in the writ petition) and to direct respondents 1 and 2 to preserve the site as a playground for children, could not be granted as they were barred by the principles of equitable estoppel. Mr. Krishna Murthy referred to several decisions of the Supreme court elucidating the principle of equitable estoppel.
21. This is not a case in which the Government or the Bangalore Corporation sought to revoke or withdraw the lease granted in favour of the society. Hence, the principle of equitable estoppel has no application to the present case. When the petitioners had impugned in the writ petition the lease of the site to the society as being contrary to law, we do not see how the principle of equitable estoppel can be invoked by the Society.
22. Lastly, it was contended by Mr. Krishna Murthy that in the absence of allegation of mala fides against the Bangalore Corporation and the Government, the learned single judge should not have interfered with the grant of lease.
23. There is no merit in the above contention. Mala fides are not the only ground for interference with the action of authorities. If such action is without the authority of law, is in violation of any provisions of law, the court would be justified in striking down such action.
24. In the view we take we consider it unnecessary to deal with the contention of Mr. Narasimha Murthy that the petitioners and other residents of Jayanagar extension had purchased sites in that extension on the basis of the representation contained in the scheme of Jayanagar extension, that the said site would be reserved as a playground for children and that the Bangalore Corporation as the successor of the Board, was bound by the doctrine of promissory estoppel to keep that site only as playground for children and was precluded from leasing that site for any other purpose. For the same reasons, we consider it unnecessary to go into the question whether under section 21 of the General Clauses Act, the State Government could withdraw the sanction for the lease of the land in favour of the society.
25. We do not see any good ground to dissent from the conclusion of the learned single judge though we do not subscribe to his reasoning completely.
26. In the result, we dismiss these appeals.
27. In the circumstances, we direct the parties to bear their own costs.