2005 Supreme(Kar) 614

IN THE HIGH COURT OF KARNATAKA AT BAN GALORE
MOHAN SHANTANAGOUDAR, J.
BHAVANI HOUSING CO-OPERATIVE SOCIETY LIMITED (REGISTERED), BANGALORE Appellant
versus
BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER Respondent
Writ Petition No. 35078 of 2003 (BDA).
Decided on 4th October, 2005

Headnote:Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 -Rule 3 -Vesting of Civic amenity sites -Civic amenity sites earmarked as such in private layout approved by authority -Vesting. See, Bangalore Development Authority Act, 1976 -Section 38-A.

       Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985 -Vesting of civic amenity site -Section 2(f) -Vesting of civic amenity site -Private layout formed with approval of the planning authority -Sites earmarked as civic amenity sites -Vesting of with authority -The persons/society who formed layout should relinquish such sites in favour of the authority -Authority cannot suo motu take possession of -Persons/society forming layout should relinquish such sites -There is no vested right in them. See, BDA Act, 1976 and BDA (Allotment of Civic Amenity Sites) Rules, 1989.

       Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 -Rule 2(b) -Vesting of Civic amenity sites -Pre-condition for. See, Bangalore Development Authority Act, 1976 -Section 32(5).

       Cases Referred: 1997 (4) Kar. L. J. 442; Writ appeal No. 6869/1996 disposed of on 25-3-1998.

       Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 -Obligation of the applicant -Rule 2(b) -Obligation of the applicant -Private layout approved by authority -Civic amenity sites earmarked -Applicants should relinquish them in favour of the authority -There is no vested right in the applicant who got the approval and formed the layout. See, BDA Act, 1976 -Section 32.

       Cases Referred: 1997 (4) Kar. L. J. 442; Writ appeal No. 6869/1996 disposed of on 25-3-1998.

       Bangalore Development Authority Act, 1976 -Obligation of the applicant -Section 32 -Obligation of the applicant -Private layout approved by authority -Civic amenity sites earmarked -Applicants should relinquish them in favour of the authority -There is no vested right in the applicant who got the approval and formed the layout. [Mohan Shantanagoudar, J]: It is well settled that whenever a private layout is to be formed, approval has to be obtained fTom the BDA as contemplated U/S. 32 of the Act. Section 32(5) of the BDA-Act empowers the BDA to insist upon the release of CAS in its favour for approval of the layout plan as the same is condition precedent for such approval. Thus, while getting the layout approved, the applicants should agree to transfer the ownership of the roads, drains water supply mains and open spaces laid out by them to the authority permanently without claiming any compensation therefor. A combined reading of Section 32(5) of the BDA-Act , Rule 2(b) of BDA (Allotment of Civil Amenity Sites) Rules 1989 and provisions of Section-2(f) of the Karnataka Parks, Play Fields and Open Spaces (Preservation and Regulation) Act, 1985, would make it clear that the CAS will have to be relinquished to BDA by the applicants. No option is left to the applicants, but to relinquish the CAS in favour of BDA. There is no right vested in the Housing Society to reserve the Civic Amenities Sites for its purpose, as it is duty of BDA to maintain the said benefits for the benefit of public. Sections-38 and 38A of the BDA-Act empower he authority exclusively to deal with Civic Amenities Sites in any area or any property vested in or acquired by it under the Act.

       

       Cases Referred: 1997 (4) Kar. L. J. 442; Writ appeal No. 6869/1996 disposed of on 25-3-1998.

       Bangalore Development Authority Act, 1976 -Section 2(bb) -Open space -Whether includes civic amenity sites. See, Karnataka Parks, Play -Fields and Open Spaces (Preservation and Regulation) Act, 1985 -Section 2(f).

       Bangalore Development Authority Act, 1976 -Section 30(2) - Open Space including such parks and play grounds -Construction of -Includes civic amenity sites also. [Mohan Shantanagoudar, J]: The careful reading of the said provision, makes it amply clear that the word open space is a broader connotation, which includes the Civic Amenity Site also. The words "open space including such parks and playgrounds" found in Section 30(2) of the Act are to be noted significantly in this regard. Thus the word Open Space does not mean, only parks and playgrounds but the same includes other places which are left open at the time of formation of layout by the applicant. It is needless to observe that the other open spaces to be left open by the applicant, are for the purposes of beneficial use of public in the form of Civil Amenity . Thus, word open space means and includes the land/site set apart for the purpose of Civic Amenities also.

       Cases Referred: 1997 (4) Kar. L. J. 442; Writ appeal No. 6869/1996 disposed of on 25-3-1998.

       Bangalore Development Authority Act, 1976 -Section 32(5) Vesting of Civic amenity site -Civic amenity sites earmarked as such in approved private layouts -Vesting with authority -Pre-requirement for -The persons who formed the layout should relinquish or reconvey such sites -authority cannot suo motu take possession. [Mohan Shantanagoudar, J]: the person who applies for sanction for formation of layout, should relinquish the open spaces in favour of 1 51 respondent -authority. The language used in the aforesaid provisions is plain, simple and unambiguous. In view of the aforesaid mandatory provisions, Court could not persuade itself to agree with the argument of that CAS shall vest automatically with the authority immediately after forming the layout. In the absence of such deeming provisions, the CAS will not vest automatically with BDA. Under such circumstances, this Court has no other option but to hold that execution of the relinquishment deed is necessary for transfer of CAS from petitioner to BDA .

       Bangalore Development Authority Act, 1976 -Section 38-A -Civic amenity sites -Earmarked as -Vests in the authority free of cost even in a private layout approved by the authority subject to relinquishment by the persons who formed the layout. [Mohan Shantanagoudar, J]: By harmonious and combined reading of provisions of Section-32 (5) and 38A of the Bangalore Development Act, the definition "open space" found in section 2( f) of the Karnataka Parks, Play-Fields and open spaces (Preservation and Regulation) Act 1985 and the definition of" Civic Amenity" found in section-2(bb) of the BDA-Act and Rule-2(b) of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules 1989 and other provisions of the BDA Act, this Court will safely conclude that the "Civic Amenity Sites" earmarked in a layout formed by the authority or a site earmarked for civic amenity in a private layout approved by the authority will vest in BDA , free of cost, subject to the relinquishment by the applicants.

       Cases Referred: 1997 (4) Kar. L. J. 442; Writ appeal No. 6869/1996 disposed of on 25-3-1998.

       Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985 -Section 2(f) -Applicability -Applies to all cities including City of Bangalore -Open space -Not defined in BDA Act -There is no embargo to import the definition under the Act in so far as regulation of open spaces is concerned as there is no conflict between the Act and the BDA Act. [Mohan Shantanagoudar, J]: As, the word Open Space is defined in the statute which is applicable to all the cities including Bangalore City, there is no embargo for the Courts to import/apply the same to the present case, as the aforesaid Act is enacted for the purposes of preservation and regulation of parks, play fields and open space. Thus, in the absence of definition of open space in BDA Act , it is just and necessary to import the said meaning of open space into BDA Act particularly when the provisions of the Karnataka Parks Act 1985 don t conflict with provisions of BDA Act, particularly in so far as they relate to regulation of open spaces are concerned. The provisions of two enactment s viz., BDA Act and Karnataka Parks, Play Fields and open spaces (preservation and Regulation) Act 1985 will have to be read conjointly and harmoniously. If the definition of "Civic Amenity" found in BDA Act and the definition of Open Space found in the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act 1985 are read harmoniously, it would be clear that the open space means and includes the land/site earmarked/set

       apart for civic amenities purposes.

       Cases Referred: 1997 (4) Kar. L. J. 442