Purushottam vs State of Karnataka - 2013 Supreme(SC) 1093

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(SC) 1093

SUPREME COURT OF INDIA
Surinder Singh Nijjar and A.K.Sikri,JJ.
Purushottam — Appellant
versus
State of Karnataka &Ors. — Respondents
Civil Appeal No.10747 of 2013
(Arising out of SLP (C) No. 31690 of 2011)
With
Mrs. Ramadevi — Appellant
versus
Bangalore Development Authority &Ors. — Respondents
Civil Appeal No.10748 of 2013
(Arising out of SLP (C) No. 31695 of 2011)
With
Bharat Petroleum Corporation Limited — Appellant
versus
Subramanya&Ors. — Respondents
Civil Appeal No.10749 of 2013
(Arising out of SLP (C) No. 33184 of 2011)
with
Bharat Petroleum Corporation Limited — Appellant
versus
Dr. Harish V. Iyer&Ors. — Respondents
Civil Appeal No.10750 of 2013
(Arising out of SLP (C) No. 33319 of 2011)
Decided on : 29-11-2013

Headnote:Bangalore Development Authority Act, 1976-Sections 2bb(vi) ,38A(2) -Appeals against judgment of High Court declaring the allotment of civic amenity site no. 2 to Bharat Petroleum Corporation respondent 3 for establishment of a petrol pump, null and void-Case of appellants that High Court erred in holding that any area of particular civic amenity could not be subsequently changed to another user which also falls within definition of a civic amenity and that merely, because user had been changed from public park to bank and then to petrol pump not violated the provisions contained in Section 38A(1) and (2)-Held in terms of the mandate contained in Section 38-A of theBDA 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”, it could not have been allotted for use as a “petrol station-Appeals having no merit dismissed (Paras 14 to 19)
       Facts of the Case :
        A.PresentAppeals have been filed against judgment of High Court declaring the allotment of civic amenity site no. 2 to Bharat Petroleum Corporation respondent 3 for establishment of a petrol pump, null and void.
        B.Appellantscontended that High Court erred in holding that any area of particular civic amenity could not be subsequently changed to another user which also falls within definition of a civic amenity and that merely, because user had been changed from public park to bank and then to petrol pump not violated the provisions contained in Section 38A(1) and (2).
       Findings of the Court :
        A.The Supreme Court held thaton 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 alicence 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 evensuch 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.
        B. It was further held that in terms of the mandate contained in Section 38-A of the BDA 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”, it could not have been allotted for use as a “petrol station. Appeals having no merit were dismissed.
       Result : Appeals dismissed

JUDGMENT

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 Courthas declared the allotment of civic amenity site no. 2 to Bharat Petroleum Corporation (respondent No. 3) for establishment of apetrol pump, null and void. The writ petitions have been allowed. The allotment dated 4th August, 2005 made in favourof 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. infavour 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 [(1991) 4 SCC 54] 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 par

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2013 Supreme(SC) 1093

Cases Referred (2)