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® IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH
DAY OF MARCH, 2013
BEFORE:
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 41717 OF 2011 (BDA)
CONNECTED WITH
WRIT PETITION Nos.6452-6453 OF 2011 (BDA)
IN W.P.No.41717 OF 2011
BETWEEN:
1. Manyatha Residents Association
Represented by its Secretary,
Mr. A. Shantaram,
with its registered office at
No.9/1, I Floor, Classic Court,
Richmond Road,
Bangalore – 560 025.
2. Sri. D.N. Srihari,
Son of Mr. D. Narayanaswamy,
Aged about 47 years,
Residing at No.2A,
Shanthi Nivas, No.4
South End Road,
Seshadripuram,
Bangalore – 560 020.
2
3. Mr. N.C.S. Parthasarathi,
Son of Nanduri Panduranga Vithal,
Aged about 50 years,
Residing at No.1-2-36,
Domal Guda,
Hyderabad – 000 29.
4. Sri. C. Joseph,
Son of D. Chowrappa,
Aged about 86 years,
Residing at No.10, 18/A,
Bhuvaneshwari Nagar,
H.A. Farm Post,
Bangalore – 560 024.
5. Sri. Ramanjeneyula Reddy,
Son of R. Sriramulu Reddy,
Aged about 41 years,
Residing at Bhargava Towers,
1st Floor, Flat No.2,
No.20, Dinnur Main Road,
R.T.Nagar,
Bangalore – 560 032.
6. Sri. Shankar Gopal,
Son of Dr. M.G.Gopal,
Aged about 46 years,
c/o. Dr. M.G.Gopal,
Aged about 74 years,
Residing at No.381,
1st N Block,
19th G-Main,
Rajajinagar,
Bangalore – 560 010.
3
7. Sri. Chandra S. Bachu,
Son of B.R. Krishnamurthy,
Aged about 44 years,
C/o. Ramesh Chandra Dutt,
Son of Late S. Chinnaswamy Setty,
No.57, AECS Layout,
RMV 2nd
Stage,
Bangalore – 560 094.
8. Mrs. Amara Radhakrishna,
Wife of Mr. D. Radhakrishna Reddy,
Aged about 40 years,
Residing at No.40,
4th
Cross, Ganesha Block,
Nandini Layout,
Mahalakshmi Layout,
Bangalore – 560 086.
9. Mr. N. Vasu,
Son of K. Narayan,
Aged about 45 years,
No.12/3, 16th
Cross,
Jai Bharath Nagar,
Hariyamma Temple Street,
Bangalore – 560 033.
10. Mrs. Aleyamma Korah,
Wife of Mr. K.P. Korah,
Aged about 69 years,
Residing at No.5,
4th
Cross, Dinnur,
R.T.Nagar, Bangalore – 560 032.
11. Sri. H.S. Vishwanath,
Son of Late H.S. Seetaramaiah,
4
Aged about 44 years,
Residing at No.57,
Swarnamukhi Apartments,
Gandhinagar Adyar,
Chennai – 20. …PETITIONERS
(By Shri. K.G. Raghavan, Senior Advocate for Shri. Chintan
Chinnappa, Advocate for Dua Associates, Advocates )
AND:
1. The Bangalore Development Authority,
Represented by its Commissioner,
T. Chowdaiah Road,
Kumara Park West,
Bangalore – 560 020.
2. Gas Authority of India Limited,
Corporate Miller,
II Floor, 332/1,
Thimmaiah Road,
Off Queens Road,
Vasanthanagar,
Bangalore – 560 052,
By its Deputy General Manager.
3. Manyatha Residency Nivasigala
Kshemabhivrudhi Sangha (R),
Represented by its Secretary
Sri. K. Jayaraman,
having its registered office at
No.1, 3rd
Floor,
Maruthi Complex,
R.T.Nagara Main Road,
Bangalore – 560 032.
5
4. State of Karnataka,
Department of Urban Development,
By its Principal Secretary,
Vikas Soudha,
Bangalore. …RESPONDENTS
(By Shri. V.B. Shivakumar, Advocate for Respondent No.1
Shri. K. Subbarao, Senior Advocate for Shri. H.M. Muralidhar,
Advocate for M/s. Sreeranga Associates, Advocates for
Respondent No.2
Shri. N. Mahalinga Bhat, Advocate for Respondent No.3
Shri. K. Krishna, Additional Government Advocate for
Respondent No.4 )
*****
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to issue a writ or order reading
down Section 2(bb) (vi) of the BDA Act, 1976 so as to restrict the
power of first respondent to notify civic amenity sites only for the
purposes of a civil amenity for the residents of a layout and etc;
IN W.P.Nos.6452-53 of 2011
BETWEEN:
1. Manyatha Residents Association,
Represented by its Secretary –
Mr. A. Shantharam,
Registered office at No.9/1,
I Floor, Classic Court,
Richmond Road,
Bangalore – 560 025.
2. Sri. D.N. Srihari,
6
Son of Mr. D. Narayanaswamy,
Aged about 47 years,
Residing at No.2A,
Shanthi Nivas,
No.4, South End Road,
Seshadripuram,
Bangalore – 560 020.
3. Sri. C. Joseph,
Son of D. Chowrappa,
Aged about 86 years,
Residing at No.10, 18/A,
Bhuvaneshwari Nagar,
H.A. Farm Post,
Bangalore – 560 024.
4. Sri. Chandra S.Bachu,
Son of B.R. Krishnamurthy,
Aged about 44 years,
C/o. Ramesh Chandra Dutt,
Son of Late S. Chinnaswamy Setty,
No.57, AECS Layout,
RMV 2nd
Stage,
Bangalore – 560 094.
5. Mrs. Amara Radhakrishna,
Wife of Mr. D. Radhakrishna Reddy,
Aged about 40 years,
Residing at No.40,
4th
Cross, Ganesha Block,
Nandini Layout,
Mahalakshmi Layout,
Bangalore – 560 086.
7
6. Mr. Y.S.V.K. Vasudeva Rao,
Aged: 65 years,
Son of PUrnachandra Rao,
No.50/A 21, Manyata Residency,
Bangalore – 560 045.
7. Mrs. A. Shilpa,
Aged: 30 years,
Wife of Sreekar,
No.50/A 21,
Manyata Residency,
Bangalore – 560 045.
8. Mr. A. Sreekar,
Aged: 40 years,
Son of Purnachandra Rao,
No.50/A 21,
Manyata Residency,
Bangalore – 560 045.
9. Mr. G. Pullareddy,
Aged: 47 years,
Son of Sri. G. Narayana Reddy,
No. D – 15, Manyata Residency,
Bangalore – 560 045. …PETITIONERS
(By Shri. K.G. Raghavan, Senior Advocate for Shri. Chintan
Chinnappa, advocate for M/s. Dua Associates, advocates
AND:
1. The State of Karnataka,
Department of Housing and
Urban Development,
By its Principal Secretary,
8
Multistoried Building,
Bangalore – 560 001.
2. The Bangalore Development Authority,
Represented by its Commissioner,
T. Chowdaiah Road,
Kumara Park West,
Bangalore – 560 020.
3. M/s. Bennett Coleman and Company
Limited, Dr. D.N. Road,
Mumbai – 400 001,
commonly known as Times of India Group,
represented by its General Manager.
4. Syndicate Bank,
Corporate Office,
Gandhinagar,
Bangalore – 560 009,
Represented by its Chief Manager.
5. Manyata Residency Nivasigala
Kshemabhivrudhi Sangha ®,
Represented by its Secretary
K. Jajaraman, having its registered
Office at No.1, 3rd
Floor,
Maruthi Complex,
R.T.Nagar Main Road,
Bangalore – 560 032. …RESPONDENTS
(By Shri. K. Krishna, Additional Government Advocate for
Respondent No.1
Shri. Basavaraj Sabarad, Advocate for Respondent No.2
9
Shri. Udaya Holla, Senior Advocate for Shri. Ramesh .T,
Advocate for M/s. Universal Legal Attorney at law, Advocates for
Respondent No.3
Shri. Prabhu and Dave, Advocate for Respondent No.4
Shri. M.T. Jagan Mohan, Advocate for Respondent no.5)
*****
These Writ Petitions are filed under Article 226 of the
Constitution of India praying to issue a writ or order reading down
section 2(bb)(vi) of the BDA Act, 1976 so as to restrict the power
of respondent No.1 to notify civil amenity sites only for the
purposes of a civic amenity for the residents of a layout and etc;
These petitions, having been heard and reserved on
08.01.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
O R D E R
These petitions are disposed of to-gether having regard to
the fact that the petitioner is common and the issues involved are
identical.
2. The petitioner is an association registered under the
Karnataka Societies Registration Act, 1961 (Hereinafter referred
to as the ‘KSR Act’, for brevity). It is comprised of members who
are owners of houses or house sites in the residential layout
10
known as ‘Manyatha Residency’ at Rachenahalli,
Krishnarajapuram Hobli, Bangalore East Taluk.
It is stated that M/s. Manyatha Promoters Private Limited
has formed a residential layout in about 82 acres of land at
Rachenahalli, duly approved by the Bangalore Development
Authority (Hereinafter referred to as the ‘BDA’, for brevity).
It is claimed that as per the layout plan, the areas
earmarked as civic amenity sites, open spaces and roads are all
relinquished by the developer in favour of the BDA.
It is stated that one of the principles that guide the allotment
of a civic amenity site is “the benefit likely to accrue to the
general public of the locality by the allotment of the civic amenity
site and a need of the civic amenity site by the institution to
provide the civil amenities in question”.
The allotment is to be made by a Committee known as the
Civic Amenity Site Allotment Committee.
11
It is the grievance of the petitioner that without identifying
the civic amenity required for the resident and without identifying
each of the civic amenity site for the specific civic amenity, the
BDA has, without following the prescribed procedure of giving
wide publicity and inviting applications, had allotted the civic
amenity sites bearing nos.5 and 6 to the Gas Authority of India
Limited for the purpose of establishing its “Office Building and
Regional Gas Management Centre”. This, according to the
petitioner, is neither a civic amenity nor an amenity for the
residents.
3. Similarly in the connected petition, it is alleged that the
BDA has allotted civic amenity site no.2A and 2B to M/s Bennett
Coleman and Company Limited, a company belonging to the
Times of India Group of Companies and civic amenity site no.4 to
M/s Syndicate Bank for the purpose of establishing their
respective Corporate Offices.
12
4. Shri K.G. Raghavan, Senior Advocate, appearing for the
learned counsel for the petitioner would contend that Rule 3 of the
BDA (Allotment of Civic Amenity Site) Rules, 1989 (Hereinafter
referred to as ‘1989 Rules’, for brevity) provides that the BDA
may, out of the Civic Amenity Sites available in any area, reserve
such number of sites for the purpose of providing civic amenity
referred to in Section 2bb(i)(v) of the Bangalore Development
Authority Act, 1976 (Hereinafter referred to as the ‘BDA Act’, for
brevity). This, coupled with the principles guiding the allotment
of civic amenity sites at Rule 7(d) and (f) would make it
abundantly clear that the civic amenity is an amenity that is
provided for the residents of the layout.
There is no publicity afforded to the allotment as
contemplated under Rule 3(3) of the 1989 Rules. Nor has the
further procedure been followed of inviting applications from
eligible applicants. It is contended that the allotment is illegal as
neither the BDA Act nor the 1989 Rules permit the BDA to
13
dispose of any civic amenity site for any purpose other than a
civic amenity. The power of BDA under Section 2(bb)(vi) cannot
be read in isolation, but has to be read in conjunction with the
definition of the term ‘civic amenity’, which is to sub-serve the
interest of the residents of the layout. It is contended that the
BDA could not trade away the civic amenity site for extraneous
considerations for commercial purposes unmindful of the
necessity of the residents for space to provide civic amenities in
the layout, which is spread over 82 acres.
It is contended that the State Government notifying Central
Government and State Government Offices as a civic amenity site
does not correspond to the scheme and intendment of Section
2(bb) of the BDA Act. In any event, it is pointed out that in terms
of Rule 3, the BDA may reserve such number of civic amenity
sites for purposes of providing civic amenities referred to in sub-
clauses (i) and (v) of clause (bb) of Section 2, by the Central
Government, the State Government, Corporation or by a body
14
established by the Central Government or the State Government.
After making such reservation, offer such of the remaining civic
amenity sites for the purposes of allotment on lease basis, to any
“Institution”. And that shall be done in accordance with the
procedure prescribed and subject to the eligibility criteria. It is
pointed out by the learned counsel that the allottees in these two
petitions do not come under either sub-clauses - (i) or (v) of
clause(bb) of Section 2 and would not also fall under the
definition of “Institution” as contemplated under the Rules.
The learned Senior Advocate would place reliance on the
following authorities in support of the petitions:-
1. A.K.Bindral and another vs. Union of India, (2003)114
Comp.Cases 590,
2. Bangalore Medical Trust vs. B.S.Muddappa, (1991)4 SCC 54,
3. S G R Technical and Educational Society, Bangalore vs. State
of Karnataka, 2008(1) Kar.LJ 642,
15
4. Dehri Rohtas Light Railway Company limited vs. District
Board,Bhojpur, (1992)2 SCC 598,
5. Competent Authority vs. Barangore Jute Factory and Others,
(2005)13 SCC 477,
6. Royal Orchid Hotels Limited vs. G.Jayarama Reddy and
others, (2011)10 SCC 608,
7. Koramangala Residents Vigilance Group vs. Corporation of
the City of Bangalore and Others, 1999(4) Kar.LJ 206
8. Reserve Bank of India vs. Peerless General Finance and
Investment Company Limited, AIR 1987 SC 1023,
9. Capt.M.V.Subbarayappa vs. Bharat Electronics Employees
Co-operative House Building Society Limited, ILR 1990
Kar.390,
10. M.B.Ramachandran vs. State of Karnataka, ILR 1992
Kar.174.
5. Shri K. Subba Rao, Senior Advocate appearing for the
learned Counsel for the Gas Authority of India Limited, contends
16
that the allotment made of the civic amenity sites in question in
favour of the said respondent was for the purposes of work
relating to a gas pipeline project, which is a public purpose, as it is
meant to provide supply of liquid petroleum gas for household
use. The said respondent is a Central Government undertaking. It
is laying a gas pipeline known as Dabhol – Bangalore Gas
Pipeline, from Dabhol in Maharashtra State to Bangalore (Bidadi)
with associated branch lines, covering a distance of 993
kilometres. Having regard to the significant public need that is
met by the project, the State Government of Karnataka has entered
into an agreement with GAIL to render all required assistance in
implementing the project, vide agreement dated 29.4.2009. The
Department of Infrastructure Development, Karnataka, has
constituted an Apex Level Co-ordination Group Comprising of
various authorities and local bodies to expedite all approvals and
sanctions required for implementation of the project.
GAIL is said to have established a National Gas
Management Centre (NGMC) for the management of its gas
17
transportation and supply operations through out the country. The
NGMC is said to be located at New Delhi – linked to 7 regional
centres. The regional centres will address the day to day
operation and maintenance of the project. The sites now allotted
are required for the establishment of a regional centre at
Bangalore. On a request by GAIL to the State Government, the
BDA was directed to find a suitable location and the present sites
have been allotted on lease basis for a period of 30 years, vide
allotment dated 23.2.2010 and a lease deed executed on
20.6.2011. The sites are said to have been handed over on
27.6.2011. After taking possession, the said respondent has
incurred an expenditure of Rs.1.29 crore to shift a high tension
line that was running over the sites.
It has also embarked on construction of a building at a cost
of Rs.19 Crore. It is at that stage, that the present petition has
been filed.
18
Shri Subba Rao contends that as per Rule 6(1)d iv) of the
Revised Master Plan 2015, as approved by the Government, vide
order dated 22.6.2007, the civic amenity sites owned by the BDA
could be used for any purpose irrespective of the land use
classification in the Revised Master Plan 2015 and that the said
Rule is operative till amendments are made to the BDA Act and
1989 Rules.
It is contended that the Developer, had set up the petitioner
to file this petition as the Developer had failed in its earlier
attempt, in a writ petition before this court, in respect of a similar
allotment in favour of another body in WP 12500/2005. The bona
fides of the members of the Association is also questioned by the
learned Senior Advocate.
It is asserted that the Government Notification dated
3.11.2009 enables the BDA to allot civic amenity sites in favour
of Central Government and State Government Offices.
It is pointed out that the writ petition is filed after a delay of
18 months after allotment of the sites in favour of GAIL as on
19
23.2.2010, and after huge investments had been made to construct
its building apart from having shifted the HT line over the
property, through the KPTCL and apart from obtaining sanctions
and permissions from innumerable authorities to establish the
Centre.
It is further asserted that by a notification dated 29.8.1990
“Liquified Petroleum Gas Godowns is declared as a “Civic
Amenity” for purposes of the Act. The State Government has
issued a notification dated 23.11.2012 substituting the following
in its place.
“Liquified Petroleum Gas Gowdowns including Gas Management
Centre/Gas storage Centre/Natural Gas Storage and associate
activities/S.V. Station”
Hence it is no longer possible for the petitioner to contend
that the proposed Centre is not a civic amenity, as the State
Government in exercise of its power under Section 2(bb) vi – has
notified a Gas Management Centre as a civic amenity.
20
It is contended that the argument that the procedure
prescribed has not been followed is also not tenable – as GAIL is
not an institution as described under the 1989 Rules – but is a
body established by the Central Government. The allotment made
is under Section 38A of the BDA Act. This read with Rule 8(4)
enables the same being made in favour of GAIL.
It is also pointed out that the notification dated 29.8.1990
was issued pursuant to the amendment to Section 2(bb) by Act
No.11 of 1988, with retrospective effect from 21.4.1984. Unless
the amendment is challenged – the notification cannot be assailed.
It is claimed that having regard to the purpose for which the
sites have been allotted to GAIL, the petitioner has no locus
standi to question the same. It is pointed out that in the earlier
writ petition filed by the Developer of the layout in WP
12500/2005, this court, while disposing of the petition, has held
that the BDA, in its discretion, has passed a resolution to allot a
site to the third respondent and that the petitioner therein, could
21
not seek to espouse a public cause. It is contended that by the
same analogy, the petitioner herein has no vested right over the
site in question.
The learned Senior Advocate, Shri Rao has placed reliance
on the following authorities in support of his contentions.
1. Ramana Dayaram Shetty vs. International Airport Authority of
India and others, 1979(3) SC 489,
2. Aicoboo Nagar Residents Welfare Association vs. Bangalore
Development Authority, ILR 2002 KAR.4705,
3. Printers (Mysore) Limited vs. M.A.Rasheed and others,
2004(4) SCC 460,
4. Chairman and Managing Director, BPL Limited vs.
S.P.Gururaja and others, 2003(8) SCC 567,
5. Capt. M.V.Subbarayappa vs. Bharat Electronics Employees
Co-operative House Building Society Limited, ILR 1990
KAR.390,
22
6. NAL Layout Residents Association vs. Union of India, 2005(3)
KLJ 86,
7. M.C.Mehta vs. Union of India, WP 13029/1985,
8. R.K.Porwal vs. State of Maharashtra, AIR 1981 SC 1127,
9. State of Punjab vs. Tehal Singh, AIR 2002 SC 533,
10. Union of India vs. Cynamide India Limited, AIR 1987 SC 1802,
11. Sundarjas Kanyualal Bhathija and others vs. The Collector,
Thane, Maharashtra and others, AIR 1991 SC 1893,
12. Sundarjas Kanyualal Bhathija and others vs. The Collector,
Thane, Maharashtra and others, AIR 1990 SC 261.
6. The learned counsel appearing for the BDA contends as
follows :-
That the BDA has allotted the site in question in exercise of
power available to it, in favour of GAIL, in the year 2009. A lease
deed has been executed in its favour and physical possession has
been delivered under a possession certificate and that the
petitioner cannot question the allotment of a civic amenity site in
23
favour of a government institution. The Developer of the
residential layout, of which the civic amenity site in question is a
part, has relinquished the site unconditionally in favour of the
BDA under a registered deed. The State Government is enabled
to notify a specific amenity as a civic amenity. This having been
complied with, there is no irregularity in the allotment. It is also
contended that the petition is hit by delay and laches.
Incidentally, as there was a notification dated 23.11.2012
issued by the State Government, seeking to amend the notification
dated 29.8.1990, to specifically include the present facility of
GAIL, the petitioner has urged additional grounds questioning the
same. One of the contentions is that the notification is issued
during the pendency of these proceedings and is evidently an
afterthought and is clearly a colourable exercise of power only to
favour GAIL. It is reiterated that the said facility would not in any
manner sub-serve the need of the locality as a so-called civic
amenity, notwithstanding that it is part of prestigious project .
24
It is contended on behalf of respondent no.3, M/s Bennett
Coleman & Company, in the connected writ petition WP
6452-53 /2011, that the site in question has been allotted in its
favour in the year 2009 and that it has paid a sum of Rs 1.28 crore
as the land cost, apart from other charges to the BDA and a further
sum of Rs.1.34 crore, in the year 2010 on the demand made by
BDA. The said respondent claims to have expended further
amounts in excess of Rs.90 lakh towards other expenses in
undertaking the development of the land. It claims to have
obtained sanction of a plan and building licence for the
construction of its Corporate Office comprising of a 10 floor level
building. In this regard, the respondent claims to have expended
Rs.3.60 crore in engaging third-party agencies to undertake the
construction. Therefore, the learned Counsel contends that the
petition having been filed one year and two months after the
property had been transferred in its favour is barred by delay and
laches. It is further contended that a writ petition filed by an
Association is not maintainable. The provisions of law are
25
incidentally referred to in order to justify the allotment of the civic
amenity site in its favour.
It is contended on behalf of Respondent no.4, M/s
Syndicate Bank, that it is a nationalized bank. It had approached
the BDA seeking the allotment of a suitable site to house its
Corporate Office. The BDA had, in turn, allotted the subject site
in question, for the said purpose and had executed a lease deed
dated 30.12.2010. The respondent is said to have been put in
possession thereof. It is claimed that when the said respondent
sought to build a compound wall around the site, it is alleged that
persons employed by the developer, who had formed the layout
obstructed and demolished a shed that was put up on the property.
It is contended that the present petitioner is only a front for the
said developer in preventing the respondent from proceeding with
the legitimate development of the property for a public purpose. It
is sought to be pointed out from the cause title that the petitioners
26
are apparently not residents of the locality and are various
localities of Bangalore City and even out of town.
It is claimed that the said respondent intends to establish its
branch at the site along with an Automatic Teller Machine, which
is certainly a civic amenity as defined under the relevant Act. It is
hence contended that the allotment is in accordance with law.
7. The BDA, which has filed statement of objections in the
second writ petition, has further contended that the allotment of a
civic amenity site in favour of the above respondents, M/s Bennett
Coleman & Co. & M/s Syndicate Bank, is in accordance with
law. It is reiterated that the writ petition is brought mala fide at
the instance of the Developer and that it is barred by delay and
laches.
8. By way of rejoinder to the above petitions, Shri
Raghavan, points out that the plea of the petitions being barred by
delay and laches is incorrect – the petitioners, which represents the
residents of the locality and owners of the properties therein, were
27
not aware of the lease deeds executed or the respondents being put
in symbolic possession of the sites in question. There was also no
sign of physical activity on the sites. There was some activity
only from 30.1.2011. The petitions were filed soon thereafter, as
on 5.2.2011. Even if it should be said that there was delay , a
patent illegality cannot be sustained only on the ground of delay,
which in any event cannot even be considered as inordinate. It is
also contended that it was understood by the respondents,
especially GAIL, that any development made on the land during
the pendency of these proceedings, would not enable it to claim
equities, as is evident from the order of this court dated
12.12.2011. Hence it would not be available for the respondents
to claim that in view the substantial amounts of money expended
and the effort involved, it would enable them to sustain the illegal
allotment of the civic amenity sites.
9. In the light of the above rival contentions the following
points would arise for consideration :
28
a) Whether the petitioners have the locus standi to
challenge the allotment made in favour of the respondents?
b) Whether the petitions are liable to be rejected as being
barred by delay and laches ?
c) Whether the allotment of the civic amenity sites in favour
of the respondents , namely, M/s GAIL, M/s Bennett Coleman &
Company Limited and M/s Syndicate Bank, respectively, is in
accordance with law ?
In so far as Point a) , is concerned , it cannot be said that
the petitioners are not entitled to question the allotment made in
favour of the respondents. It may be that the petitioners cannot
claim any proprietary right over the said civic amenity sites, with
the relinquishment of the same by the Developer in favour of the
BDA. However, they would be the direct beneficiaries of the
civic amenity that can be established therein. The following dicta
of the apex court in Muddappa’s case supra, would squarely apply
to the present petitioners.
29
“20. Section 65 empowers the
Government to give such directions to the BDA
as are, in its opinion, necessary or expedient for
carrying out the purposes of the Act. It is the
duty of the BDA to comply with such directions.
It is con- tended that the BDA is bound by all
directions of the Government, irrespective of the
nature or purpose of the directions. We do not
agree that the power of the Government under
section 65 is unrestricted. The object of the
directions must be to carry out the object of the
Act and not contrary to it. Only such directions
as arc reasonably necessary or expedient for
carrying out the object of the enactment are
contemplated by section 65. If a direction were
to be issued by the Government to lease out to
private parties areas reserved in the scheme for
public parks and play grounds, such a direction
would not have the sanctity of section 65. Any
such diversion of the user of the land would be
opposed to the statute as well as the object in
constituting the BDA to promote the healthy
development of the city and improve the quality
of life. Any repository of power - be it the
Government or the BDA must act reasonably
30
and rationally and in accordance with law and
with due regard to the legislative intent.”
While also pointing out that the challenge to the allotment of
space reserved for a public park and for the purpose of a private
hospital was brought by the residents of the locality, on the ground
that it is contrary to the provisions of the Act and the Scheme
sanctioned therein, attention is drawn to the following :-
“ 29. The residents of the locality are the
persons intimately, vitally and adversely affected
by any action of the BDA and the government
which is destructive of the environment and
which deprives them of facilities reserved for the
enjoyment and protection of the health of the
public at large. The residents of the locality,
such as the writ petitioners, are naturally
aggrieved by the impugned orders and they have,
therefore, the necessary locus standi.
xxx
35. Locus standi to approach by way of
writ petition and refusal to grant relief in equity
jurisdiction are two different aspects, may be
with same result. One relates to maintainability
31
of the petition and other to exercise of
discretion. Law on the former has marched much
ahead. Many milestones have been covered. The
restricted meaning of aggrieved person and
narrow outlook of specific injury has yielded in
favour of broad and wide construction in wake
of public interest litigation. Even in private
challenge to executive or administrative action
having extensive fall out the dividing line
between personal injury or loss and injury of a
public nature is fast vanishing. Law has veered
round from genuine grievance against order
affecting prejudicially to sufficient interest in the
matter. The rise in exercise of power by the
executive and comparative decline in proper and
effective administrative guidance is forcing
citizens to espouse challenges with public
interest flavour. It is too late in the day,
therefore, to claim that petition filed by
inhabitants of a locality whose park was
converted into a nursing home had no cause to
invoke equity jurisdiction of the High Court. In
fact public spirited citizens having faith in rule
of law are rendering great social and legal
service by espousing cause of public nature.
They cannot be ignored or overlooked on
32
technical or conservative yardstick of the rule of
locus standi or absence of personal loss or
injury. Present day development of this branch
of jurisprudence is towards freer movement both
in nature of litigation and approach of the
courts. Residents of locality seeking protection
and maintenance of environment of their locality
cannot be said to be busy bodies or interlopers.
Even otherwise physical or personal or
economic injury may give rise to civil or
criminal action but violation of rule of law either
by ignoring or affronting individual or action of
the executive in disregard of the provisions of
law raises substantial issue of accountability of
those entrusted with responsibility of the
administration. It furnishes enough cause of
action either for individual or community in
general to approach by way of writ petition and
the authorities cannot be permitted to seek
shelter under cover of technicalities of locus
standi nor they can be heard to plead for
restraint in exercise of discretion as grave issues
of public concern outweigh such
considerations.”
33
The question as to the legal position of a government
company was addressed in the context of Fertilizer Corporation
of India and Hindustan Fertilizer Corporation, which were both
companies registered under the Companies Act and the only
difference being that they are government companies within the
meaning of section 617 of the Companies Act. The apex Court has
answered the question thus :-
“What will be the legal position of a
Government Company and whether its
employees will be treated to be government
servants was examined in Heavy Engineering
Mazdoor Union v. State of Bihar & Ors. AIR
1970 SC 82 and it was held as under in para 4 of
the reports:
".............It is an undisputed fact that the
company was incorporated under the Companies
Act and it is the company so incorporated which
carries on the undertaking. The undertaking,
therefore, is not one carried on directly by the
Central Government or by any one of its
34
departments as in the case of posts and
telegraphs or the railways........"
After referring to the well known decision
in Saloman v. A. Saloman & Co. Ltd. 1897 AC
22, Halsbury's Laws of England and some other
English decisions the Court ruled as under:
"............Therefore, the mere fact that the
entire share capital of the respondent-company
was contributed by the Central Government and
the fact that all its shares are held by the
President and certain officers of the Central
Government does not make any difference. The
company and the share holders being, as
aforesaid, distinct entities the fact that the
President of India and certain officers hold all
its shares does not make the company an agent
either of the President or the Central
Government..........."
Again in para 5 it was held that the fact
that a minister appoints the members or
directors of a corporation and he is entitled to
call for information, to give directions which are
binding on the directors and to supervise over
35
the conduct of the business of the corporation
does not render the corporation an agent of the
State.
The legal position is that identity of the
Government Company remains distinct from the
government. The Government Company is not
identified with the Union but has been placed
under a special system of control and conferred
certain privileges by virtue of the provisions
contained in Sections 619 and 620 of the
Companies Act. Merely because the entire share
holding is owned by the Central Government will
not make the incorporated company as Central
Government.”
As regards the question whether the petitioner is barred by
delay and laches, insofar as the question of delay is concerned in
all the three instances, the execution of lease deeds in favour of the
respective allottees is without the public at large being kept
informed or even the local residents being informed of the civic
amenity being leased out to the said parties. It is only when there
was some physical activity on the respective sites, that the
36
residents have woken up to the situation and have come before the
court soon thereafter. Hence to contend that there is delay from
the date of allotment or that the time within which the petition
should have been filed should be construed from the date of
allotment or the execution of the lease deeds and possession
certificates, is untenable, if there was no public notice of the
transactions entered into by the BDA with the said respondents.
10. The following observations of the apex court would
certainly favour the petitioners.
Dehri Rohtas Light Railway Company’ s case, supra, is
relied upon for the proposition as to whether a party could be
denied the relief only on the ground of delay and laches
notwithstanding the illegality and the apex court has held thus:-
“The rule which says that the Court may
not inquire into belated and stale claim is not a
rule of law but a rule of practice based on sound
and proper exercise of discretion. Each case
must depend upon its own facts. It will all
37
depend on what the breach of the fundamental
right and the remedy claimed are and how the
delay arose. The principle on which the relief to
the party on the grounds of laches or delay is
denied is that the rights which have accrued to
others by reason of the delay is denied is that the
rights which have accrued to others by reason of
the delay in filing the petition should not be
allowed to be disturbed unless there is
reasonable explanation for the delay. The real
test to determine delay in such cases is that the
petitioner should come to the writ court before a
parallel right is created and that the lapse of
time is not attributable to any laches or
negligence. The test is not to physical running of
time. Where the circumstances justifying the
conduct exists, the illegality which is manifest
cannot be sustained on the sole ground of laches.
The decision in Trilokchand case relied on is
distinguishable on the facts of the present case.
The levy if based on the net profits of the railway
undertaking was beyond the authority and the
illegal nature of the same has been questioned
though belatedly in the pending proceedings
after the pronouncement of the High Court in the
matter relating to the subsequent years. That
38
being the case, the claim of the appellant cannot
be turned down on the sole ground of delay….”
In Barangore Jute Factory, supra, one of the issues was
whether delay on the part of the petitioners in bringing a challenge
to a notification, would disentitle them to the relief and the Court
has answered as follows:-
“The learned counsel supporting the
acquisition submitted that the delay in filing the
Writ Petition is fatal to the case of land owners.
It is true that 11th June, 1998 Notification was
challenged only in September, 2001 by filing the
Writ Petition. But if the Notification violates the
very statute from which it derives its force, will
delay in challenging it clothe it with legitimacy?
The Act requires the Notification to be issued in
a particular manner with brief particulars of
land being acquired. The Notification in this
case fails to meet this requirement. We have held
it to be bad in law. It has no legs to stand. The
conduct of the opposite party cannot be used to
make it stand. Moreover, the Writ Petitioners
have explained the reasons for the delay in filing
39
the Writ Petition. The Company which owns the
lands had been de-registered. It is a Company
registered in the U.K. It had to be revived.
Revival came in mid-2001 whereafter the action
was taken. Thus we find no merit in the argument
about delay in challenging the Notification
rendering the challenge liable to be rejected.”
In Koramangala Residents Vigilance Group, supra, a
division bench of this court has also reiterated the above principle
that the delay by itself would not bar a petition where the delay is
explained and where no third-party right has set in on account of
the delay.
On the other hand, the reliance sought to be placed on the
decisions of the apex court in the case of Ramana Dayaram
Shetty, supra, and Printers (Mysore ) Limited, were both cases in
which the petitioner was fully aware of the respondent having
been conferred a benefit by the State, which was sought to be
questioned after a delay of 5 months in the former case and a
delay of three years in the latter. On the other hand it is the
40
positive case of the petitioners herein that they remained unaware
of the allotment in favour of the respondents and that they have
approached the court at the earliest.
In considering the validity of the allotment in favour of the
respondents the following aspects are relevant :
a) The eligibility of the allottees to be entitled for allotment
of a civic amenity site;
b) The purpose for which the allotment is secured, whether
could be considered as a civic amenity;
c) Whether the notification of a “gas management centre”
as a civic amenity site would indeed be in conformity with the
object of the BDA Act and the 1989 Rules;
d) Whether the respondent allottees can claim equities in
their favour either on the ground that there is a completed
transaction of a lease deed executed in their favour, in each of their
cases, or on the ground that enormous expenditure is incurred
41
under various heads pursuant to the same and therefore they have
changed their position to an extent that it is irreversible.
In considering the eligibility of the allottee respondents, the
text of the relevant provisions may be noted :
“Civic amenity” is defined under Section 2(bb) of the BDA
Act as follows :-
“ [(bb) “Civic amenity” means.-
(i) a market, a post office, a telephone exchange, a
bank, a fair price shop, a milk booth, a school, a
dispensary, a hospital, a pathological laboratory, a
maternity home, a child care centre, a library, a
gymnasium, a bus stand or a bus depot;
(ii) a recreation centre run by the Government or
the Corporation;
(iii) a centre for educational, social or cultural
activities established by the Central Government or
the State Government or by a body established by
the Central Government or the State Government;
(iv) a centre for educational, religious, social or
cultural activities or for philanthropic service run by
a Co-operative Society Registered under the
42
Karnataka Co-operative Societies Act, 1959
(Karnataka Act 11 of 1959) or a Society Registered
under the Karnataka Societies Registration Act,
1960 (Karnataka Act 17 of 1960) or by a Trust
Created wholly for Charitable, Educational or
Religious purposes;
(v) a Police Station, an Area Office or a Service
Station of the Corporation or the Bangalore Water
Supply and Sewerage Board or the Karnataka
Electricity Board; and
(vi) such other amenity as the Government may, by
notification, specify.”]
Section 38A of the Act, which deals with grant of area
reserved for civic amenities reads thus :
“[38A. 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:
43
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.]”
Rule 2(b) of the 1989 Rules defines a civic amenity thus :
“(b) “Civic Amenity site” means a site
earmarked for civic amenity in a layout formed
by the authority or a site earmarked for civic
amenity in a private layout approved by the
authority and relinquished to it;”
An “ Institution”, for the purposes of the Rules is defined
under Rule 2(d), thus :
“(d) “Institution” means an institution,
society or an association registered under the
Karnataka Societies Registration Act, 1960
(Karnataka Act 17 of 1960) or a Co-operative
Society registered under the Karnataka Co-
operative Societies Act, 1959 (Karnataka Act
11of 1959) or a trust created wholly for
charitable educational or religious purpose;”
44
Rule 3 provides for the manner in which a civic amenity
site shall be offered for allotment . It reads thus :
“3. Offer of civic amenity sites for
allotment – (1) The authority may out of the Civil
amenity sites available in any area reserve such
number of sites for the purpose of providing civil
amenity referred to in sub-clauses (i) and (v) of
clause (bb) of Section 2, by the Central
Government, the State Government, Corporation
or by a body established by the Central
Government or the State Government.
(2) After making reservation under sub-
rule (1) the authority may, subject to Section 38-
A and general or special orders of the
Government, and having regard to the particulars
type of civic amenity required to be provided in
any locality offer such of the remaining civic
amenity sites for the purpose of allotment on
lease basis to any institution:
Provided that the authority shall while so
offering the civic amenity sites reserved eighteen
per cent of such sites for being allotted to an
institution established exclusively for the benefit
of Schedule Castes the majority of members of
which consists of persons belonging to Schedule
Castes and three per cent of such sites to an
institution established exclusively for the benefit
45
of Scheduled Tribes the majority of members of
which consists of persons belonging to Scheduled
Tribes and if at the time of making allotment
sufficient number of such institutions are not
available the remaining sites so reserved may be
allotted to other institutions.”
Rule 6 prescribes the eligibility thus :
“6. Eligibility. – (1) The authority may
allot civic amenity site on lease basis only to an
institution which is registered under Rule 5.
(2) Civic amenity site shall not be allotted
to any institution unless it has capacity to provide
the type of civic amenity for providing which the
site is offered.”
Rule 7 prescribes the principles of selection of an institution
for leasing out civic amenity sites . One of the principles that
guide the allotment of a civic amenity site is “ the benefit likely to
accrue to the general public of the locality by the allotment of the
civic amenity site and a need of the civic amenity site by the
institution to provide the civic amenities in question ”.
46
Firstly, it would have to be seen whether any of the allottee
respondents come with in the purview of Section 2 (bb) i) or iv).
It is self- evident that they do not. Nor do any of the said
respondents answer the definition of an “ institution” under the
1989 Rules. In this context neither M/s Bennett Coleman &
Company Limited nor, M/s Syndicate Bank can lay claim to being
part of the State Government, the Central Government, a
Corporation or a body established by the Central Government or
the State Government. One is a company incorporated under the
Companies Act and the other is a bank constituted under Central
Act no.5 of 1970. However , it is claimed on behalf of M/s GAIL,
that it is a “Central Government company under the
administrative control of (the) Ministry of Petroleum and Natural
Gas, Government of India”. This would hardly make any
difference, as it cannot be claimed even then, that it is part of the
Central Government or a body established by the Central
Government. The law as expounded by the apex court on this
47
aspect is categorical. The following observations in A.K.Bindral’s
case, supra, are pertinent :
“What will be the legal position of a
Government Company and whether its employees
will be treated to be government servants was
examined in Heavy Engineering Mazdoor Union v.
State of Bihar & Ors. AIR 1970 SC 82 and it was
held as under in para 4 of the reports:
".............It is an undisputed fact that the
company was incorporated under the Companies Act
and it is the company so incorporated which carries
on the undertaking. The undertaking, therefore, is
not one carried on directly by the Central
Government or by any one of its departments as in
the case of posts and telegraphs or the
railways........"
After referring to the well known decision in
Saloman v. A. Saloman & Co. Ltd. 1897 AC 22,
Halsbury's Laws of England and some other English
decisions the Court ruled as under:
"............Therefore, the mere fact that the
entire share capital of the respondent-company was
contributed by the Central Government and the fact
that all its shares are held by the President and
certain officers of the Central Government does not
48
make any difference. The company and the share
holders being, as aforesaid, distinct entities the fact
that the President of India and certain officers hold
all its shares does not make the company an agent
either of the President or the Central
Government..........."
Again in para 5 it was held that the fact that
a minister appoints the members or directors of a
corporation and he is entitled to call for information,
to give directions which are binding on the directors
and to supervise over the conduct of the business of
the corporation does not render the corporation an
agent of the State.
The legal position is that identity of the
Government Company remains distinct from the
government. The Government Company is not
identified with the Union but has been placed under
a special system of control and conferred certain
privileges by virtue of the provisions contained in
Sections 619 and 620 of the Companies Act. Merely
because the entire share holding is owned by the
Central Government will not make the incorporated
company as Central Government.”
49
Incidentally, the bona fides of the petitioners is questioned
on the ground that the petitioners are persons set up by the
Developer of the land in question, ostensibly seeking to “fire from
their shoulder” – is hardly tenable when the Developer has already
relinquished the area reserved for parks and open spaces as well as
the civic amenity site areas in favour of the BDA. Further, even if
the mala fides of the petitioners is to be presumed, it would not
result in the illegality, that pervades the allotment, being cured.
The following decisions cited by the respondents to contend
that the petition by the present association is not maintainable
would not apply as the said decisions are in the following
background :
Thimmarayaswamy vs. Gurumurthy and others, 1991(2)
Kar.LJ 300.
The appellant therein was a Singh claiming that in the
allotment of a site by the local Mandal Panchayat in favour of the
first respondent it had violated the norms set out under section 50
50
of the Village Panchayath Act. In that, no applications were
invited and no notice was given to the general public and there
was no sanction from the government to enable such allotment.
The division bench of this court in turning down the claim that
Singh was not an applicant for the allotment. Therefore, there
was no legal necessity and merely because the appellant was a tax
payer, it would not enable Singh to file a writ petition.
In Mahinder Kumar Gupta vs. Union of India, (1995) 1
SCC 85, it was a matter relating to grant of dealership or
distributorship of Petroleum products awarded by the
Government of India undertaking. The petition by an association
was rejected on the ground that the petitioner has no fundamental
right under Article 32 of the Constitution of India.
On the next aspect whether the purpose for which the
allotment is made can be considered a civic amenity for the
residents of the locality. It cannot be said that the respective sites
being used for the purposes of housing the Corporate Offices of a
51
bank or a business house , as in the case of M/s Syndicate Bank
and M/s Bennett Coleman & Company, respectively, such a
purpose would not even remotely meet the needs of the local
residents and cannot be characterized as an amenity or a civic
amenity. Though incidental facility made available in the
Corporate Office of the bank of an ATM or its branch to serve the
banking needs of the public , would not justify the establishment
of a monolithic multi-storeyed building to accommodate men and
material to serve its own larger needs- that do not in any way
benefit the local residents.
The desperate measure adopted by the State Government to
notify “ a gas management centre “ as being a civic amenity, even
during the pendency of this petition – in order to satisfy the
requirement of law. It becomes starkly apparent that such a
facility was not even contemplated by the authorities themselves
as being a civic amenity. It would however, be naïve on the part
of the respondents to contend that the same having been notified
52
by the State government, this court is precluded from addressing
the logic or the justification in the same being construed as a civic
amenity. It is not even claimed by the said respondent that the
said Centre to be established is a facility meant to service the
needs of the locality, on the other hand it is admittedly a regional
centre of a multi-state gas pipeline network and is not an amenity
for the primary benefit of the housing layout of which the civic
amenity site is a part. Even if it can be said that the State
government being armed with the power to specify any other
amenity not contemplated under the Act, by notification, this
would necessarily require that such amenity should conform to the
object and scheme of the Act. It is also mandatory that the
procedure prescribed under the Rules be followed in making any
such allotment. The contention that the allotment is made in
terms of Section 38 A of the Act is not tenable. There was no
such reservation made of the civic amenity site in question – to be
allotted in favour of the said respondent. The respondent is not
eligible for any such reservation being made, either.
53
In so far as the allottees seeking to claim that much
expenditure has been incurred in the furtherance of the purposes
for which the allotment of sites have been made apart from the
interest of various third-party agencies having intervened, the
balance of convenience should tip in favour of the allottees and
the petitions be dismissed on the ground of delay and laches, is
not a tenable contention. The petitioners were apparently not
made aware of the lease transactions executed by the BDA in
favour of the allottees. It is only when they commenced work on
the sites that the petitioners became aware of the situation created
by BDA and have immediately preferred the petitions. It is hence
for the concerned respondents to work out their remedy in
damages against the State and the BDA in respect of any such set
back which their projects may suffer in the impugned allotments
being set – aside.
11. In the result, this court is of the firm view that on a plain
application of the BDA Act and the 1989 Rules, the allotment in
54
favour of the respondents is clearly in violation of the same and
cannot be sustained. Consequently, the petitions are allowed and
the allotment made in respect of site nos.5 and 6 at Manyatha
Nagar, Rachenahalli, Bangalore East Taluk in favour of respondent
no.2 in WP 41717/2011, and in respect of site nos.2A and 2B at
Manyatha Nagar, Rachenahalli, Bangalore East Taluk in favour of
respondent no.4 in WP 6452-53/2011, and site No.4 in favour of
Respondent No.3 as per allotment dated 13.10.2010 and the
consequent lease deeds and possession certificates are quashed.
Sd/-
JUDGE
nv