J.S Khehar, C.J (Oral):— The challenge raised through the instant writ petitions, which have been filed as a cause in public interest, is aimed at assailing the action of the State Government, as also, the Bangalore Development Authority, in making allotment of civic amenity site no. 2 to the Bharath Petroleum Corporation (respondent no. 3), so as to establish a petrol pump.

2. It is the case of the petitioners before this Court, that the site in question is located at a busy point surrounded by roads bearing heavy traffic. Based on the provisions of the Bangalore Development Authority Act, 1976, the claim of the petitioners is, that the site in question could not have been allotted for construction of a petrol pump.

3. 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 Annexurc-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 Civic amenity site no. 2 is indicated 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. 8, is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connection therewith.

4. The primary submission advanced at the hands of the learned counsel for the petitioners is based on Section 38-A of the Bangalore Development Authority Act, 1976. Section 38-A aforementioned is being extracted hereunder:

“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 of any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall he 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.”

5. Based on sub-section (1) of Section 38-A, and the factual, position indicated above, it is the vehement contention of the learned counsel for the petitioners that the civic amenity site in question could have been leased, sold or otherwise transferred only “… for purpose for which such area is reserved”, namely, for use as “bank”. Relying on sub-section (2) of Section 38-A, it is the submission of the learned counsel for the petitioners that any lease, sale or transfer of a reserved area, earmarked as a “civic amenity site”, made in violation of the “purpose” for which such area is reserved, would be treated as “…null and void”. Based on the fact that the civic amenity site no. 2 was specifically earmarked and reserved for use as a “bank”, it is sought to be asserted that the same could not have been altered for use as a “petrol station/petrol pump”. Accordingly it is contended that the action of the Bangalore Development Authority, in allowing respondent no. 3 to use civic amenity site no. 2 as a “petrol pump” is liable to be treated as null and void.

6. The contention advanced by the learned counsel for the petitioners, as has been noticed in the foregoing paragraphs, is sought to be refuted at the hands of the learned counsel representing respondents, firstly by placing reliance on Section 2(bb) of the Bangalore Development Authority Act, 1.976 which is being extracted hereunder:

“2(bb). “Civic amenity” means—

(i) a market a post office, a telephone exchange, a bank, a fair price shop, a milk booth, a school, a dispensary, a hospital, a pathological laboratory, a maternity home, a child care centre, a library, a gymnasium, a bus stand or a bus depot;

(ii) a recreation centre run by the Government or the Corporation;

(iii) a centre for educational social or cultural activities established by the Central Government or the State Government or by a body established by the Central Government or the State Government;

(iv) a centre for educational, religious, social or cultural activities or for philanthropic service rum by a Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) or a Society registered, under the Karnataka Societies Registration Act 1960 (Karnataka Act 17 of 1960) or by a Trust created wholly for Charitable, Educational or Religious purposes;

(v) a Police Station, an Area Office or a Service Station of the Corporation of the Bangalore Water supply and Sewerage Board or the Karnataka Electricity Board; and

(vi) such other amenity as the Government may, by notification, specify.”

It is the contention of the learned counsel for the respondents, that in exercise of the authority vested under Clause (vi) of Section 2(bh) re-produced above, the State Government, by a notification dated 29.08.1990, had included “petrol pump” as one of the amenities which would constitute a “civic amenity”. It is therefore the contention of the learned counsel for the respondents, that the use for which respondent nos. 3 and 4 have been allotted the civic amenity site no. 2 is a permissible use, and as such, the action taken by the authorities in allotting the site to resoondent nos 3 and 4 for use as a “petrol pump” cannot be treated as in violation of the provisions of the Bangalore Development Authority Act, 1976.

7. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the respondents. We however, find no merit therein. It is not the case of the petitioners before this Court that “petrol pump” is not a civic amenity, and as such, respondents could not have been allotted the site in question, to raise a “petrol pump”. The question raised by the petitioners is, that the civic amenity site which has been earmarked and reserved for a particular purpose, can only be leased, sold or otherwise transferred for use, for the particular purpose for which it is earmarked/reserved, and for no other purpose. The contention of the petitioners is, that the site in question (civic amenity site no. 2) being reserved/earmarked for “bank”, could be allotted for use as “bank”, and not for use as “petrol pump”. The contention raised by the petitioners before this Court, in our considered view, cannot be defeated on the basis of Section 2(bb) of the Bangalore Development Authority Act, 1976 for exactly the same consideration as has been recorded hereinabove. We therefore find no merit in the instant contention raised on behalf of the respondents.

8. Besides the aforesaid, learned counsel for the respondents placed reliance on a judgment rendered by a Division Bench of this Court in Aicohoo Nagar Residents Welfare Association v. Bangalore Development Authority, Bangalore, reported in ILR 2002 KAR 4705, Emphatic reliance was placed on the observations made in paragraph 10, which is being extracted hereunder:

“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 13.12.1988, 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 the modification of plan on 13.2.1998 the contention thai CA. 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 afield 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.”

Based on the aforesaid observations, it is the vehement contention of the learned counsel for the respondents, that the action of the respondents in allotting a “petrol pump” to he raised at civic amenity site no. 2, cannot he annulled for the same reason as emerged from the legal position expressed in paragraph 10 of the judgment rendered by this Court in Aicoboo Nagar Residents Welfare Associations case (supra).

9. We have examined the second contention advanced at the hands of the learned counsel for the respondents. Yet again, it is not possible for us to accept the submission advanced at the hands of the learned counsel for the respondents on account of the fact, that the Division Bench was examining the validity of the action of the respondents on the basis of Section 2(bb) of the Bangalore Development Authority Act, 1976. This is not sought to be the basis of the challenge raised at the hands of the petitioners before this Court. Reliance before us has been placed only on Section 38-A of the Bangalore Development Authority Act, 1976, and its violation. Our determination in recording the validity or otherwise of the impugned allotment is therefore to be based on Section 38-A aforementioned. In view of the above as also the conclusions already drawn hereinabove, we are of the view, that the judgment relied upon by the learned counsel for the respondents is not relevant to defeat the contention advanced on behalf of the petitioners.

10. We have given our thoughtful consideration to the sole contention advanced at the hands of the learned counsel for the petitioners in the instant matter. We are satisfied that civic 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, 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:”. We also find merit in the associated contention advanced at the hands of the learned counsel for the petitioners based on sub-section (2) of Section 38-A of the Bangalore Development Authority Act, 1976, wherein, the statutory provision clearly enunciates, that any lease, sale or transfer by any means whatsoever, for raising an amenity which is not in consonance with the purpose for which the area is reserved “shall be null and void”. The purpose for which civic amenity site no. 2 was reserved, at the time of its allotment to respondent nos. 3 and 4, was undoubtedly “bank”. The same has now been allotted to respondent nos. 3 and 4 for use as a “petrol pump”. Even though both “bank” and “petrol station” are civic amenities within the meaning of Section 2(bb) of the Bangalore Development Authority 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. There is a clear bar for the user of any civic amenity site for a purpose other than the one for which it is earmarked/reserved. Since we have concluded hereinabove that the allotment made in favour of respondent no. 3 (resulting in the execution of a further lease in favour of respondent no. 4) for a purpose other than the one, for which the civic amenity site no. 2 was reserved (by the Bangalore Development Authority), we have no hesitation to hold that the action of the respondents in allotting the site in question to respondent no. 3 is in clear violation of Section 38-A of the Bangalore Development Authority Act, 1976, and is null and void. We therefore, hereby set aside the allotment made in favour of respondent no. 3.

11. The instant writ petition is accordingly allowed in the aforesaid terms,

12. After the completion of the hearing in the case, and the dictation of the order, learned counsel for respondent no. 4 submitted, that respondent no. 4 has already set up a petrol pump in civic amenity site no. 2, which has been functional since the year 2008. It is submitted., that respondent no. 4, as also, the other respondents, be allowed a reasonable opportunity to avail of their appellate remedy, before they are adversely affected.

13. in the facts and circumstances of this case, we find merit in the contention advanced at the hands of the learned counsel representing respondent no. 4, We therefore hereby direct, that the instant order be kept in abeyance for a period of three months, so as to enable respondent no. 4 (as also the other respondents, if they are so advised) to avail of his/their appellate remedy, in accordance with law. Unless there is a restraint order in the mean time, the instant order will have to be implemented and given effect to, after the expiry of a period of three months from today.