Allotment of civic amenity sites =
Section 38A of the BDA Act, 1976 a civic amenity site 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. - High court declared the allotment as null and void- Apex court confirmed the same and dismiss the appeal =
the High Court has concluded -
“We are satisfied that civil 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, 19776 it could not have
been leased, sold or otherwise, transferred for purpose other
than the one “….for which such area is reserved”. Since the
civil 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”.
16. 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 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.
19. We, therefore, find no merit in the appeals and the same
are hereby dismissed.
ITEM NO.1B COURT NO.9 SECTION IVA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.10747/2013 @
Petition(s) for Special Leave to Appeal (Civil) No(s).31690/2011
PURUSHOTHAM Petitioner(s)
VERSUS
STATE OF KARNATAKA & ORS. Respondent(s)
WITH Civil Appeal No.10748/2013 @
SLP(C) NO. 31695 of 2011
Civil Appeal No.10749/2013 @
SLP(C) NO. 33184 of 2011
Civil Appeal No.10750/2013 @
SLP(C) NO. 33319 of 2011
Date: 29/11/2013 These matters were called on for pronouncement of
Judgment today.
For Petitioner(s)
Dr. Sushil Balwada,Adv.
Mr. Rajeev Mishra, Adv.
Mr. Sanand Ramakrishnan
For Respondent(s)
Mr. Ankur S. Kulkarni,Adv.
Ms. Anitha Shenoy ,Adv
Mr. Rajesh Mahale ,Adv
Mr. Rajeev Mishra, Adv.
Mr. Sanand Ramakrishnan ,Adv
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
Hon'ble Mr. Justice Surinder Singh Nijjar pronounced the
Judgment of the Bench comprising His Lordship and Hon'ble Mr.
Justice A.K. Sikri.
For the reasons recorded in the signed Reportable Judgment,
the Appeals are dismissed.
|(Vishal Anand) | |(Indu Bala Kapur) |
|Court Master | |Court Master |
(Signed Reportable Judgment is placed on the file)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10747 OF 2013
(Arising out of SLP (C) No. 31690 of 2011)
Purushottam …Appellant
VERSUS
State of Karnataka & Ors. ...Respondents
With
Civil Appeal No.10748 of 2013
(Arising out of SLP (C) No. 31695 of 2011)
Mrs. Ramadevi …Appellant
VERSUS
Bangalore Development Authority & Ors. ...Respondents
With
Civil Appeal No.10749 of 2013
(Arising out of SLP (C) No. 33184 of 2011)
Bharat Petroleum Corporation Limited …Appellant
VERSUS
Subramanya & Ors. ...Respondents
With
Civil Appeal No.10750 of 2013
(Arising out of SLP (C) No. 33319 of 2011)
Bharat Petroleum Corporation Limited …Appellant
VERSUS
Dr. Harish V. Iyer & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These four appeals arising out of SLP (C) No.31690 of 2011, SLP (C)
No.31695 of 2011, SLP (C) No.33184 of 2011 and SLP (C) No.33319 of
2011, impugn the judgment of a Division Bench of Karnataka High
Court rendered in Writ Petition No. 5428 of 2006 (BDA-PIL), and
Writ Petition No. 5173 of 2006 (GM-RES/PIL), whereby the High Court
has declared the allotment of civic amenity site no. 2 to Bharat
Petroleum Corporation (respondent No. 3) for establishment of a
petrol pump, null and void. The writ petitions have been allowed.
The allotment dated 4th August, 2005 made in favour of respondent
No. 3 has been set aside.
3. The facts as narrated in C.A. No. 10747 of 2013 arising out of SLP
(C) No. 31690 of 2011 are as under:-
• 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 as “BDA Act, 1976”) 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.
• 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 as “CA Site No.2”)
• On 31st January, 2000, Bangalore Development Authority
(hereinafter referred to as “BDA”) passed 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 as “BWSSB”) on 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.[1]
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 beyond
“redemption and resumption”. The 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.
4. 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 as “bank”.
Therefore, 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 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 of Section 38A 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 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.
5. We have heard the learned counsel for the parties.
6. 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 Section 38A(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 38A(2).
7. Learned counsel for the appellants have submitted that in fact
there is no resolution passed by the 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 “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 Aicoboo Nagar Residents
Welfare Association & Anr. Vs. Bangalore Development Authority,
Bangalore & Anr.[2] 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”.
8. Learned counsel appearing for the BDA and the State of Karnataka
have supported the case pleaded by the appellants. Learned counsel
appearing for respondent Nos. 4 to 14, however, submitted that the
High Court has correctly interpreted Section 38A(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 the case of B.S. Muddappa (supra). The aforesaid judgment
has been subsequently followed by this Court in R.K. Mittal & Ors.
Vs. State of Uttar Pradesh & Ors.[3] 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.
9. We have considered the submissions made by the learned counsel for
the parties.
10. 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 held “that the
legislative intent of the Bangalore Development Authority
(Amendment) Act, 1991 (hereinafter referred to as “BDA (Amendment)
Act, 1991”), which 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 another user.
11. Original Section 38A of the BDA Act, 1976 has been substituted with
the present Section 38A w.e.f. 21st April, 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 of 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.”
12. Interpreting the aforesaid provision, this Court has held as under:-
“This new Section 38-A, as clarified in the Statement of Objects
and Reasons and in the Explanatory Statement attached to L.A.
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 the
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 the BDA or a Municipal Corporation or
any other authority, the civic amenities are not so dedicated,
but only reserved for particular or special purposes……………………
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 the 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.
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.
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 U.S. Supreme Court in Samuel
Berman v. Andrew Parker: (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.).”
13. In our opinion, the aforesaid observations are a complete answer to
all the submissions made by the learned counsel for the appellants.
14. This apart 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 annexure ‘c’ appended to the writ petition has recorded the
following facts :
“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 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 06.01.1996. Civil amenity site no.2 is indicted
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. 3 is not relevant for the
instant case, and as such we refrain, for reasons of brevity,
from recording any details in connection therewith.”
15. Upon consideration of the submissions of the learned counsel for
the parties,
the High Court has concluded -
“We are satisfied that civil 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, 19776 it could not have
been leased, sold or otherwise, transferred for purpose other
than the one “….for which such area is reserved”. Since the
civil 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”.
16. 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 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.
19. We, therefore, find no merit in the appeals and the same
are hereby dismissed.
...………………….….….J.
[Surinder Singh
Nijjar]
………………………….J.
[A.K.Sikri]
New Delhi;
November 29, 2013.
-----------------------
[1] (1991`) 4 SCC 54
[2] ILR 2002 Kar. 4705
[3] (2012) 2 SCC 232
Section 38A of the BDA Act, 1976 a civic amenity site 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. - High court declared the allotment as null and void- Apex court confirmed the same and dismiss the appeal =
the High Court has concluded -
“We are satisfied that civil 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, 19776 it could not have
been leased, sold or otherwise, transferred for purpose other
than the one “….for which such area is reserved”. Since the
civil 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”.
16. 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 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.
19. We, therefore, find no merit in the appeals and the same
are hereby dismissed.
ITEM NO.1B COURT NO.9 SECTION IVA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.10747/2013 @
Petition(s) for Special Leave to Appeal (Civil) No(s).31690/2011
PURUSHOTHAM Petitioner(s)
VERSUS
STATE OF KARNATAKA & ORS. Respondent(s)
WITH Civil Appeal No.10748/2013 @
SLP(C) NO. 31695 of 2011
Civil Appeal No.10749/2013 @
SLP(C) NO. 33184 of 2011
Civil Appeal No.10750/2013 @
SLP(C) NO. 33319 of 2011
Date: 29/11/2013 These matters were called on for pronouncement of
Judgment today.
For Petitioner(s)
Dr. Sushil Balwada,Adv.
Mr. Rajeev Mishra, Adv.
Mr. Sanand Ramakrishnan
For Respondent(s)
Mr. Ankur S. Kulkarni,Adv.
Ms. Anitha Shenoy ,Adv
Mr. Rajesh Mahale ,Adv
Mr. Rajeev Mishra, Adv.
Mr. Sanand Ramakrishnan ,Adv
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
Hon'ble Mr. Justice Surinder Singh Nijjar pronounced the
Judgment of the Bench comprising His Lordship and Hon'ble Mr.
Justice A.K. Sikri.
For the reasons recorded in the signed Reportable Judgment,
the Appeals are dismissed.
|(Vishal Anand) | |(Indu Bala Kapur) |
|Court Master | |Court Master |
(Signed Reportable Judgment is placed on the file)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10747 OF 2013
(Arising out of SLP (C) No. 31690 of 2011)
Purushottam …Appellant
VERSUS
State of Karnataka & Ors. ...Respondents
With
Civil Appeal No.10748 of 2013
(Arising out of SLP (C) No. 31695 of 2011)
Mrs. Ramadevi …Appellant
VERSUS
Bangalore Development Authority & Ors. ...Respondents
With
Civil Appeal No.10749 of 2013
(Arising out of SLP (C) No. 33184 of 2011)
Bharat Petroleum Corporation Limited …Appellant
VERSUS
Subramanya & Ors. ...Respondents
With
Civil Appeal No.10750 of 2013
(Arising out of SLP (C) No. 33319 of 2011)
Bharat Petroleum Corporation Limited …Appellant
VERSUS
Dr. Harish V. Iyer & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These four appeals arising out of SLP (C) No.31690 of 2011, SLP (C)
No.31695 of 2011, SLP (C) No.33184 of 2011 and SLP (C) No.33319 of
2011, impugn the judgment of a Division Bench of Karnataka High
Court rendered in Writ Petition No. 5428 of 2006 (BDA-PIL), and
Writ Petition No. 5173 of 2006 (GM-RES/PIL), whereby the High Court
has declared the allotment of civic amenity site no. 2 to Bharat
Petroleum Corporation (respondent No. 3) for establishment of a
petrol pump, null and void. The writ petitions have been allowed.
The allotment dated 4th August, 2005 made in favour of respondent
No. 3 has been set aside.
3. The facts as narrated in C.A. No. 10747 of 2013 arising out of SLP
(C) No. 31690 of 2011 are as under:-
• 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 as “BDA Act, 1976”) 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.
• 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 as “CA Site No.2”)
• On 31st January, 2000, Bangalore Development Authority
(hereinafter referred to as “BDA”) passed 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 as “BWSSB”) on 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.[1]
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 beyond
“redemption and resumption”. The 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.
4. 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 as “bank”.
Therefore, 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 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 of Section 38A 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 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.
5. We have heard the learned counsel for the parties.
6. 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 Section 38A(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 38A(2).
7. Learned counsel for the appellants have submitted that in fact
there is no resolution passed by the 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 “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 Aicoboo Nagar Residents
Welfare Association & Anr. Vs. Bangalore Development Authority,
Bangalore & Anr.[2] 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”.
8. Learned counsel appearing for the BDA and the State of Karnataka
have supported the case pleaded by the appellants. Learned counsel
appearing for respondent Nos. 4 to 14, however, submitted that the
High Court has correctly interpreted Section 38A(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 the case of B.S. Muddappa (supra). The aforesaid judgment
has been subsequently followed by this Court in R.K. Mittal & Ors.
Vs. State of Uttar Pradesh & Ors.[3] 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.
9. We have considered the submissions made by the learned counsel for
the parties.
10. 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 held “that the
legislative intent of the Bangalore Development Authority
(Amendment) Act, 1991 (hereinafter referred to as “BDA (Amendment)
Act, 1991”), which 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 another user.
11. Original Section 38A of the BDA Act, 1976 has been substituted with
the present Section 38A w.e.f. 21st April, 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 of 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.”
12. Interpreting the aforesaid provision, this Court has held as under:-
“This new Section 38-A, as clarified in the Statement of Objects
and Reasons and in the Explanatory Statement attached to L.A.
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 the
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 the BDA or a Municipal Corporation or
any other authority, the civic amenities are not so dedicated,
but only reserved for particular or special purposes……………………
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 the 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.
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.
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 U.S. Supreme Court in Samuel
Berman v. Andrew Parker: (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.).”
13. In our opinion, the aforesaid observations are a complete answer to
all the submissions made by the learned counsel for the appellants.
14. This apart 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 annexure ‘c’ appended to the writ petition has recorded the
following facts :
“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 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 06.01.1996. Civil amenity site no.2 is indicted
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. 3 is not relevant for the
instant case, and as such we refrain, for reasons of brevity,
from recording any details in connection therewith.”
15. Upon consideration of the submissions of the learned counsel for
the parties,
the High Court has concluded -
“We are satisfied that civil 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, 19776 it could not have
been leased, sold or otherwise, transferred for purpose other
than the one “….for which such area is reserved”. Since the
civil 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”.
16. 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 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.
19. We, therefore, find no merit in the appeals and the same
are hereby dismissed.
...………………….….….J.
[Surinder Singh
Nijjar]
………………………….J.
[A.K.Sikri]
New Delhi;
November 29, 2013.
-----------------------
[1] (1991`) 4 SCC 54
[2] ILR 2002 Kar. 4705
[3] (2012) 2 SCC 232
