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Col. G.K. Burli Vs. Bangalore Development Authority - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 22634 of 1983
Judge
Reported inILR1986KAR1628; 1985(2)KarLJ510
ActsBangalore Development Authority Act, 1976; Constitution of India - Article 14
AppellantCol. G.K. Burli
RespondentBangalore Development Authority
Appellant AdvocateR.N. Narasimhamurthy, Adv.
Respondent AdvocateMahabaleswara Gowda, Adv. for Shivaraj Patil, Adv. for R-1, ;S. Udavashankar, HCGP for R-2 and ;H.B. Datar, Senior Counsel for R-3
DispositionPetition dismissed
Excerpt:
bangalore development authority act, 1976 (karnataka act no. 12 of 1976) - civic amenity site reserved for school -- allotment for running a college not change in use -- admission to institution open to public, immaterial whether allotment in favour of government or private organisation.;site reserved for school, being alloted for a college building, upon an application for allotment of site for the said purpose, without calling for applications and fulfilling the norms of allotment; challenged on the grounds of utilisation for a purpose other than the one for which reserved and violation of article 14 of the constitution of india.;the site in question has been reserved for school. it is not possible to accept the contention that the allotment of a site for the purpose of a college..........however, to ensure that the sites reserved for civic amenities in the lay-outs formed by the b. d. a. are not arbitrarily disposed of; if at all it is permissible to dispose of them, it is necessary to issue appropriate direction to the b.d.a. to safeguard the public interest and to prevent arbitrary exercise of power. accordingly, the b. d. a. is directed that no 'civic amenity' site reserved for particular purpose in any of the lay-outs formed by it shall not be disposed of for any other purpose except for the purpose for which it is reserved and in conformity with the provisions of the act, and disposal of such sites for the purpose for which the same are reserved shall not be made unless necessary rules are framed; or a definite procedure is prescribed and norms are laid.....
Judgment:
ORDER

K.A. Swami, J.

1. In this Petition under Article 226 of the Constitution, the petitioners have sought for quashing the allotment of site No. 37, J.P. Nagar Extension, Sarakki Layout, Bangalore, in favour of the 3rd respondent, as approved by the Government under its order dated 1-1-1983 bearing No. HUD. 470. MNX/82; and farther confirmed by the Government on 5-7-1983 and further to declare that the said allotment is illegal and ineffective. The petitioners have also sought for issue of a direction to the 3rd respondent restraining it from putting up any construction on Site No. 37, J.P. Nagar Extension, Sarakki Layout, Bangalore; and further to direct respondents to retrain from preventing the petitioner and others of that area from making use of the said site. They have also sought for a direction to respondents 1 and 2 to preserve the site in question as park and site No. 36 of the same area, as civic amenity site.

2. The petitioners are the residents of J.P. Nagar Extension forming part of Sarakki Layout. The site in question is a civic amenity site bearing No. 37 comprised in the J.P. Nagar Extension of Sarakki Layout. It measures 440' x 565' which will hereinafter be referred to as the 'site in question' Bangalore Development Authority-(1st respondent) will hereinafter be referred to as the 'B.D.A.'

3. Having regard to the contentions urged by the petitioners and the respondents, the following points arise for consideration :

i) Whether the allotment of site in question to the 3rd respondent, is valid in law?

ii) Whether the allotment is violative of Article 14 of the Constitution?

4.1) POINT NO. (i):

The case of the petitioners is that they have secured the sites in the J. P. Nagar Extension through the first respondent under the Rules of allotment on the basis of the layout formed by it, that when they secured the allotment of sites it was definitely made known by reason of the formation of the layout, that site No. 36 and the site in question were reserved for public park; that under the provisions of the Bangalore Development Authority Act, 1976 (for short the 'Act'), the first respondent is charged with a duty to form layouts with necessary civic amenities for the benefit of the residents of the locality and also for the purpose of providing sufficient ventilation; that the site in question having been reserved for development of park and site No. 36 for the civic amenities, it was and is not open to the first respondent to utilise the said sites for any other purpose which is inconsistent with the purpose for which the sites are reserved; that the use of the sites for any other purpose amounts to change in the layout plan which is permissible only on obtaining the approval of the State Government and as no such approval is obtained, the allotment of the site in question is bad in law.

4.2) The case of the first respondent is that the Sarakki layout was formed prior to 1975 and on 10-9-1975 in subject No. 552, the layout was modified incorporating all the changes in the location of civic amenity sites as per the layout plans placed before the then C.I.T.B. and further action was directed to be taken in accordance with that; thereafter. on 9-6-1978. the B.D.A. passed a resolution in Subject No. 128 approving the layout plans as prepared by the planning section and scrutinised by the B.D.A. in respect of 12 layouts including Sarakki Layout and civic amenities sites ware earmarked for definite purposes and it was also further resolved that the layout plans be referred to as official layout plans and whenever the allotment of civic amenity sites are taken up to any institution, to avoid uneven distribution of various amenities and concentration of the same facilities in a particular area and to give preference to the allotment of civic amenity sites to Government Departments for Health and Educational facilities. The Town Planning Member was directed to put up similar proposals in respect of other layouts. It is the further case of the first Respondent that the utilisation of site Nos. 34, 35 and 37 in J. P. Nagar Extension was further modified in Subject No. 5(sic)6 on 21-11-1979; that in modification of the previous resolution dated 21-6-1978 passed in Subject No. 128 it was resolved to utilise civic amenity sites No. 34, 35 and 37 which were earmarked for schools and temples etc. for park as they are centrally located and easily accessible from all parts of Sarakki Layout; and it was further resolved to lake action to convert these three civic amenity sites as parks and to take up the work departmentally after getting necessary estimate approved; that thereafter, the 3rd Respondent on 24-11-1981 filed an application for grant of civic amenity site No. 36 for construction of a College building for the purpose of starting a College for Boys at Sarakki Layout from the year 1982-83. Subsequently, another application dated 13-10-1982 was forwarded from the Office of the Chief Minister. On 17-11-1982. the B.D.A., - first Respondent, passed a resolution in Subject No. 369 on the application of the 3rd Respondent, in the following terms:

'The request for allotment of a C. A. site measuring about 150' x 150' in Sarakki layout for construction of college building for boys, in favour of Rashtreeya Sikshana Samithi Trus, be approved, subject to usual conditions of allotment of C.A. sites. Further, the Chairman be authorised to allot the exact C.A, site No. in Sarakki Layout.'

This resolution was further modified on 1-12-1982 in Subject No. 386 in the 28th meeting of the BDA-1st Respondent. The modified resolution reads as follows :

1. 'Subject No. 369 dealing with allotment of C. A. site in f/o Rashtreeya Sikshana Samithi Trust. The resolution be modified as follows :

It was resolved to allot a C.F. Site No. 37 in J. P. Nagar (Sarakki layout) measuring 440' x 565' for construction of college building in favour of Rashtreeya Sikshana Samithi Trust, subject to usual conditions of allotment of C.A. sites.'

This resolution of the first Respondent was approved by the State Government. The approval of the State Government was communicated to the first Respondent by the communication dated 1-1-1983. It is the further case of the first Respondent that though the 3rd Respondent applied for C.A. site bearing No. 36 but without mentioning actual measurement; that as the site was reserved for construction of a shopping complex by the B.D.A., it could not be allotted; therefore Site No. 37 was allotted; that in fact, Site No. 36 measures 790' x 590' whereas Site No. 37 measures 440' x 565'; therefore, what is allotted is a smaller site even though the 3rd Responds has applied for a bigger site; that Site No. 37 has never been reserved for park, it has been reserved for the school and the attempt of the first Respondent to alter the reservation of Site No. 37 from the School category to the Park category, has not been approved by the State Government; that such an approval is necessary under Section 19 of the Act; that the State Government has approved the allotment of the site to the 3rd Respondent for construction of building for College; that the allotment is in accordance with the purpose for which the site is reserved under the layout; that the site is reserved for school and the allotment is also for running educational institution i.e., college which also falls within the category of 'School'; therefore, the case of the 1st Respondent is that the allotment is not only in accordance with the provisions of the Act and it is also in conformity with the layout plan; that the petitioners and the other residents of the locality when they sought for allotment for sites as per the layout plan the site No. 37 was reserved for school; therefore, they cannot be said to have suffered any injury whatsoever by reason of allotment of the site in question for construction of a college building, that no right of the petitioners can be said to have been violated because there is no change in the use of the site.

4.3) The 3rd respondent has also filed the statement of objections which is also in line with the statement of objections filed by the BDA-first respondent. In addition to that, it is the case of the 3rd respondent that it is a reputed educational institution serving the causa of education and that it has already started construction and invested huge sum; that as the allotment is for public purpose, it is not a case in which interference is called for.

4.4) From the records produced in the case including the layout plan of Sarakki Layout and also from the various resolutions referred to above, it is established that the sit(c) in question was not reserved for a park; it was reserved for a school. In fact, it is contended by Sri R.N. Narasimhamurthy, learned Counsel for the petitioners, that the allotment of a site for a college is opposed to the purpose for which it was reserved, because college cannot be considered to be a school. It was only subsequently as per the resolution passed in Subject No. 516, dated 21-11-1979, the BDA-1st respondent resolved to reserve site Nos. 34, 35 and 37 (which is the site in question) for park; but no material whatsoever is placed before me that such a change is approved by the State Government. In fact, it is the case of the first respondent that it is not approved by the State Government. The State Government is also a party to the petition, and it is not the case of the State Government that it has approved such a change. If there is any change in the scheme under Section 19 of the Act, it is incumbent upon the BDA-1st respondent to obtain approval of the State Government. Therefore, we have to proceed on the basis that the site in question has been reserved for School. Now, the question as to whether the allotment of the site in question for a college building amounts to using the site for the purpose other than the one for which it is reserved. It is not possible to accept the contention of Sri R.N. Narasimhamurthy, Learned Counsel for the petitioners, that the allotment of a site for the purpose of a college amounts to utilising the site for a different purpose than the one for which it is reserved. In a real and true sense, 'school' and 'College' serve the same purpose. Both are seminaries of learning. Merely because in common parlance the expression 'school' is used in respect of the institution wherein Nursery, Primary, Secondary and High School education in imparted; but there can be a school for teaching higher education or special subjects. Therefore, allotment of the site in question for running a college cannot be held to be for a different purpose other than the one for which it is reserved.

4.5) It is also contended that the 3rd respondent is not a Government institution and it is a private organisation; therefore allotment of the site in question to a private institution is not permissible. It is not possible to accept this contention also. As long as the site in question is allotted for the purpose for which it is reserved, whether it is allotted to an educational institution run by the Government or by the private organisation does not make any difference as long as admission to the institution is open to public. In the instant case, it is not the case of the petitioners that admission to the college proposed to be run by the 3rd respondent on the site in question is confined to particular group or Section of the public and not open to general public. Therefore, it is not possible to hold that there is any illegality committed by the 1st respondent-B.D.A. in allotting the site in question to the 3rd respondent. Learned Counsel for the petitioners has also placed reliance on a decision of this Court in Holy Saint Education Society v. Venkataramana, P., ILR (Karnataka) 1982(1), 1 and ors. It is not possible to apply the Rule laid down in that decision to the present case. That was a case in which a site in a private layout was reserved for the park and thereafter it was transferred to the Corporation. The Corporation instead of maintaining it, leased it to Holy Saint Education Society for the purpose of running a school. This Court held that it was not permissible to lease the site for the purpose of school. Thus, it is clear that the said decision cannot at all be held to apply to the allotment of the site in question. Accordingly, Point No. (i) is answered in the affirmative, but subject to the finding on point No, (ii).

5. POINT NO. (ii) : During the course of arguments, the petitioners have, with the permission of the Court, amended the petition and sought to challenge the allotment of the site in question on the basis that it is violative of Article 14 of the Constitution. The contention of the petitioners is that the first respondent is a Statutory body and it cannot go on arbitrarily allotting the sites to whosoever it likes or whosoever applies to it unless it, follows the definite procedure and prescribes the norms for allotment or follows the Rules of allotment if any, or at least invites the applications for allotment of sites; that as the sites in question is allotted to the 3rd respondent without following any procedure or applying norms, the allotment in question is arbitrary and is violative of Article 14 of the Constitution. Respondents 1 and 3 have both filed the additional statements of objections stating that the allotment of the site in question, has not been made arbitrarily because the 3rd respondent alone had filed an application for allotment of the site in question and there was no other application seeking allotment of the site in question; hence there was no question of picking and choosing, therefore the first respondent, on taking into consideration of the fact that the 3rd respondent is an educational institution, has allotted the site in question It has come to the notice of this Court that not only in the instant case, but in many cases in which the civic amenity sites are allotted for building purposes, the first Respondent has never called for the applications and has never given a chance to the persons who want to seek allotment of such sites, and has neither followed the norms nor laid down any norms for thai purpose. The first-respondent B.D.A. is a statutory authority and it is 'State' for the purpose of Part III of the Constitution, as per Article 12 of the Constitution. Therefore, it is required to Act in conformity with Article 14 of the Constitution. No Rules are relied upon before me for allotment of sites on receiving application by a particular person without notifying the site/s. In fact, learned Counsel for the first respondent submits that there art no specific Rules governing the allotment of civic amenity sites. It has become necessary for this Court to observe that the first respondent is required to follow definite procedure and lay down norms for the purpose of disposal of sites reserved for civic amenities, if at all it is permissible to divert the use of such sites for other purposes and the 1st respondent decides to dispose of such sites for other purposes. After such decision, it has to call for applications from those who intend to seek allotment of such sites and fulfil the norms laid down for allotment of such sites and consider ail such applications together. Section 69 of the Act, empowers the State Government to make Rules to carry out the purposes of the Act. Clauses (g) and (h) of Sub-section (2) of Section 69 of the Act, specifically provide the topics for framing the Rules relating to lease, sale, transfer or allotment or sale by auction of sites formed by the B.D.A. No doubt, the Rules are framed regarding allotment of sites, but there is no Rule governing the disposal of sites reserved for civic amenities. No doubt, Section 38A of the Act, as inserted by Karnataka Act No. 17 of 1984 prohibits the use of area reserved for parks, play grounds and civic amenities for other purpose; and further provides that any disposition so made shall be null and void. But the expression 'civic amenity' has also been defined by the very Act No. 17/84, which has come into force on 21-4-1984. According to the definition 'civic amenity' means a market, a post office, a bank, a fair price shop, a milk booth, a school, a dispensary a maternity home, a child care centre, a library, a gymnasium, a recreation centre run by the Government or the Corporation, a police station, an area office or a service station of the Corporation or the Bangalore Water Supply and Sewerage Board or the Karnataka Electricity Board and such other amenity as the Government may by notification specify. As per the aforesaid definition, it is also further open to the State Government to expand the meaning of 'civic amenity' by specifying it in the notification. Thus, having regard to the wide meaning given to the word 'civic amenity' it becomes necessary to frame the Rules by the State Government regarding disposal of 'civic amenity' sites in conformity with the provisions of the Act. In the instant case, the site in question has been disposed of prior to the coming into force of Karnataka Act No. 17 of 1984. It has also been disposed of without calling for the applications for allotment of the site. It has been allotted straight away on receipt of the application from the 3rd respondent. The statutory authority like the first respondent could not have disposed of the site in question in such a manner. There is no doubt that there is violation of Article 14 of the Constitution. But the question for consideration is whether on this score, at this stage, will it be just and appropriate to strike down the allotment of site made in favour of the 3rd respondent. It is already noticed that the allotment of the site in favour of the 3rd respondent for the purpose of construction of building for a college, is in conformity with the lay-out plan of J. P. Nagar Extension, Sarakki Layout. The site is not disposed of for the purpose other than the one for which it is reserved under the lay-out plan. The contention relating to violation of Article 14 of the Constitution, is raised only during the course of the arguments. The 3rd respondent has been put in possession of the site and has admittedly made huge investment, as revealed from the statement of objections. The allotment is made not for the benefit of an individual but for the benefit of an educational institution for running a college which is open to one and all and the residents of the locality will also be benefited by it. In these circumstances, I am of the view that no doubt the allotment is made without prescribing a procedure and straight away on entertaining the application from the 3rd respondent and without affording an opportunity to all those who are similarly situated; nevertheless it will not be in the public interest to strike down the allotment made in favour of the 3rd respondent. Therefore, I refrain from quashing the allotment of the site in question made in favour of the 3rd respondent. Point No. (ii) is answered accordingly.

6. For the reasons stated above, this Writ Petition is dismissed. However, to ensure that the sites reserved for civic amenities in the lay-outs formed by the B. D. A. are not arbitrarily disposed of; if at all it is permissible to dispose of them, it is necessary to issue appropriate direction to the B.D.A. to safeguard the public interest and to prevent arbitrary exercise of power. Accordingly, the B. D. A. is directed that no 'civic amenity' site reserved for particular purpose in any of the lay-outs formed by it shall not be disposed of for any other purpose except for the purpose for which it is reserved and in conformity with the provisions of the Act, and disposal of such sites for the purpose for which the same are reserved shall not be made unless necessary Rules are framed; or a definite procedure is prescribed and norms are laid down in conformity with the principles embodied in Article 14 of the Constitution.


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