Karnataka High Court
Sobha Developers Ltd vs The State Of Karnataka on 5 March, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05th DAY OF MARCH 2013
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.5445-5455 OF 2012 (BDA)
BETWEEN:
1. Sobha Developers Limited,
A company incorporated under the
provisions of Companies Act 1956
having its registered office at
Sarjapur - Marthahalli Outer Ring
Road (ORR), Devarabisanahalli,
Bellandur Post, Bangalore - 560 103.
Represented by its Authorized Signatory,
Sri. Vijayakumar .G Bagoji.
2. Sobha Innercity Technopolis Private
Limited, a Company incorporated
under the provisions of Companies Act 1956,
having its registered office at
No.E-106, Sunrise Chambers,
No.22, Ulsoor Road,
Bangalore - 560 042,
Represented by its Authorized Signatory,
Sri. Vijayakumar G.Bagoji. ...PETITIONERS
(By Shri. Madhusudhana R.Naik, Senior Advocate for Shri.
Venkatesh P.Dalwai, Advocate )
2
AND:
1. The State of Karnataka,
Department of Urban Development
and Town Planning,
Vikasa Soudha, Bangalore - 560 001,
Represented by its Secretary.
2. The Bangalore Development Authority,
No.1, T. Chowdiah Road,
Kumara Park West,
Bangalore - 560 002,
Represented by its Commissioner.
3. Sobha Ameshyst and Sobha Adamus
Apartment Owners Welfare Association,
Sy.No.184, 185 and 187,
Kannamangala Village,
Bidarahalli Hobli,
Bangalore,
Represented by its President and
Secretary.
4. Sobha Althea and Sobha Azalea,
Apartment Owners Welfare Association,
Sy. No.41/1, 41/2 and 55/2,
Harohalli Village,
Yelahanka Hobli,
Bangalore North Taluk,
Bangalore,
Represented by its President and Secretary.
5. Sobha Lotus Villa,
Owners Association,
Sy. No.61/2, Kundalahalli Village,
3
K.R.Puram Hobli,
Bangalore East Taluk,
Bangalore, Represented by its President
and Secretary.
[cause title amended
as per the order dated 10.12.2012]
...RESPONDENTS
(By Shri. K. Krishna, Additional Government Advocate for
Respondent No.1
Shri. V.B. Shiva Kumar, Advocate for Respondent No.2
Shri. P.S. Rajagopal, Senior Advocate for Shri. Madhukar
Deshpande, Advocate for Respondent Nos. 3 to 5 )
*****
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to quash item No.7,9,10 and 11
and condition nos. 1, 2 and 3 of allotment letters dated 3.1.2012,
second respondent in No.451 to 455 produced at Annexure-G, H,
J, K and L respectively, in the interest of justice and equity and
etc;
These petitions, having been heard and reserved on
11.01.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
ORDER
The facts of the case are as follows:
The petitioners are engaged in the business of Real Estate Development and have jointly preferred these writ petitions raising several common questions of law.4
The petitioners have furnished details of their unquestionable presence in the business and their track record.
The petitioners claim that during the period 2006 to 2010, they had developed five residential group housing projects namely,
a) Sobha Althea & Azalea, b) Sobha Adamus & Amethyst, c) Sobha Chrysanthemum and d) Sobha Ruby & Ruby Platinum, and had developed a layout project, namely, e) Sobha Lotus.
This was as per the plans sanctioned by the second respondent, the Bangalore Development Authority.
It is stated that after such sanction of plans, as required under law the petitioners had executed Relinquishment deeds in respect of civic amenity sites, open spaces and park areas in respect of the above projects as per the sanctioned plan, in favour of the second respondent. The second respondent is the Planning Authority under the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'the KTCP Act' for brevity). In terms of Section 67 of the Bangalore Development Authority Act, 1976 5 (hereinafter referred to as 'the BDA Act' for brevity), it has framed the Revised Master Plan 2015, (hereinafter referred to as the 'RMP 2015' for brevity) which was duly approved by the State Government on 22.06.2007. That under the RMP 2015, the BDA incorporated a mode of disposal of Civic amenity sites, open spaces and park areas for the purpose of development by the owner or developer, which ultimately was to be handed over to the Local Residents Association or group, for maintenance. The petitioners contend that after completion of the construction in the above said five residential projects, they had requested the BDA on several occasions, the last of which was on 9.7.2010, for re-allotment of the civic amenity sites out of the area relinquished to it for providing amenities for the benefit of residents, while abiding by the process and procedures in terms of RMP 2015. The said representation was kept pending without any response. Therefore, the petitioners were constrained to file a writ petition before this Court in W.P.No.31663-667/2011 which was ultimately 6 disposed of by an order dated 8.9.2011, in terms of an order passed in W.P.No.12689/2011, dated 13.07.2011. This Court had held in those petitions, that the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 (hereinafter referred to as 'the 1989 Rules', for brevity), were not applicable in considering the representation of the petitioners and directed the BDA to consider the representation made by the petitioners for allotment of the civic amenity sites in terms of Regulation 7 of the RMP 2015. Therefore, the petitioners had again made a request on 16.09.2011 to the BDA to comply with the directions issued by this Court. The BDA had issued allotment letters on 3.1.2012, and on other dates, and allotted 11 civic amenity sites, however, contrary to the mandate of RMP 2015 and the specific direction issued by this Court. The BDA had invoked the 1989 Rules and incorporated certain conditions such as a fixed period of lease for 30 years, payment of lease amount in a lumpsum or in yearly 7 installments and fixation of annual rents, etc., which are not at all contemplated in RMP 2015.
The petitioners claim that they have completed the residential projects. The BDA has also issued occupation certificates in respect of the various apartments and other units and the petitioners have also executed sale deeds in favour of third party purchasers of such units from 27.08.2010 onwards and in those sale deeds and other agreements, the petitioners have committed themselves to certain contractual obligations for providing certain civic amenities on sites which were to be allotted by Respondent No.2 and have also agreed to develop the same at their own cost and hand over the same to associations which would undertake the maintenance of the common areas and the civic amenities in the respective projects as they represent the ultimate beneficiaries. The petitioners had then made a request to the BDA seeking sanction of plan for construction of the civic amenities, as per 8 letters dated 31.01.2012 onwards. The measurement of the civic amenity sites pertaining to the projects is as hereunder:
Request made for Plan Sanction in CA Sites Projects CA sites (Sq.mt.) Sobha Althea/ Azalea Sy.No.41/1, 41/2 and 45/2 of Harohally, 1914.576 Yelahanka Hobli, Bangalore North Taluk, Bangalore Sobha Chrysanthemum Sy.No.98/1, 98/2, 99/1, 99/3 of 3785.24 Thanisandra, K.R. Puram Hobli, Bangalore East Taluk, Bangalore.
Sobha Adamus Amethyst Sy.No.184, 185, 187 of Kannamangala, 2377.97 Bidarahalli Hobli, Bangalore East Taluk, Bangalore.
Sobha Lotus 576.16
Sy.No.61/2 of Kundalahalli Village,
600.96
K.R. Puram Hobli,
Bangalore East Taluk, Bangalore.
9
It is the case of the petitioners that in view of their contractual obligations, the resident associations are exerting pressure on the petitioners to develop the civic amenity sites, as their members are reluctant to occupy the apartments without the civic amenities being provided and those who have already occupied the apartments notwithstanding that the civic amenity sites are not developed, are even more agitated and are threatening legal action against the petitioners. This situation has been brought about for no fault of the petitioners. In that, the petitioners have not proceeded to develop the civic amenity sites in the light of extraneous conditions having been imposed by the BDA, dehors the RMP 2015. It is the imposition of such conditions that is under challenge in these writ petitions.
2. The learned Senior Advocate, Shri Madhusudan R. Naik, appearing for the learned counsel for the petitioners contends that the BDA has no power or jurisdiction to impose a condition as regards the period of lease and to claim lease rentals under the 10 RMP 2015 while acting in its capacity as the Planning Authority under the KTCP Act. Therefore, the impugned conditions are illegal and without jurisdiction. Attention is drawn to Regulation 7.1.2 of RMP 2015 which reads as follows:
"Regulation 7.1.2:
A minimum 5% of total plot area shall be provided for civic amenities and the owner or developer shall develop such civic amenities which finally shall be handed over to local residents association for maintenance. The mode of such handing over shall be decided by the Authority."
From a reading of the above, the learned Senior Advocate would point out that about 5% of the total plot area to be reserved for civic amenity sites which is to be developed by the builder and to be handed over to the local residents association for maintenance. From this, it would follow that the role of the Planning Authority and its intervention is contemplated only after the builder develops the civic amenity site and when it is to be handed over to the local residents association in deciding the procedure for transfer from 11 the developer to the local residents association. It does not authorise the BDA to impose conditions such as the period of lease, the lease rentals, etc. It is also pointed out that under the amended Section 67 of the BDA Act, 1976, the BDA is the Planning Authority for the purposes of the KTCP Act. Section 81(b) under the said Act empowers the BDA to act as the local Planning Authority, thereby exercising all powers under the KTCP Act. While discharging the functions as the Planning Authority, the BDA has no power to invoke the provisions of the 1989 Rules and impose conditions, which are not at all contemplated under the RMP 2015, or under the KTCP Act, 1961. Notwithstanding that the BDA discharges duties of dual authorities under the independent statutes, it is not contemplated in law that while exercising power under one Act, the said authority could invoke the provisions of the other as though there was an amalgamation of such power. The exercise of power under the said statutes remains distinct and independent. Therefore, the imposition of any such conditions while applying 12 RMP 2015 by recourse to the 1989 Rules, is clearly without jurisdiction. The circumstance that the BDA has chosen to impose such conditions by recourse to a hybrid procedure as above, in spite of this Court having issued a specific direction as to the BDA being required to apply the RMP 2015 without reference to the 1989 Rules, is hence, an affront to this Court and is therefore liable to be quashed.
3. The learned counsel for the BDA on the other hand contends that it is not in dispute as to the petitioners having executed the Relinquishment Deeds in respect of the civic amenity areas and open spaces and park areas. The BDA being the Planning Authority under the provisions of the KTCP Act and having framed the RMP 2015, duly approved by the State Government, is also not in dispute. RMP 2015 provides for the mode of disposal of the civic amenity sites. Clause 7.1 of the RMP 2015, provides for 10% of the land reserved for parks and open spaces. The open spaces and parks relinquished in favour of 13 the authority free of cost may be allowed to be maintained by the local residents' association, if the authority so decides. It is contended that the RMP 2015, is only a notification. The petitioners cannot seek any benefit under the same. On the civic amenities, open spaces and park areas vesting with the BDA by virtue of the same having been relinquished in its favour it will necessarily have to follow the procedure prescribed under the 1989 Rules which govern the field as regards the manner in which the civic amenity sites shall be allotted, and would override any notification issued under the KTCP Act. Even the notification issued under the KTCP Act contemplates that the mode of handing over shall be decided by the authority. This affords adequate discretion to the authority to prescribe modalities of handing over of the same. The letters of allotment of the civic amenity sites that have been issued to the petitioners, are not issued under the provisions of the RMP 2015 but they are issued under the provisions of the 1989 Rules. It is not incumbent on the authority to apply the RMP 2015 or the provisions of the KTCP 14 Act for purposes of collection of the lease amounts. Hence, it is contended that the petitions lack merit. It is incidentally also canvassed that the BDA Act defines civic amenity which may be allotted in accordance with the provisions of the allotment of sites rules, which contemplates the imposition of conditions in terms of the lease deed. So also, the 1989 Rules provide for allotment and prescribes the eligibility criteria and the selection of an institution for leasing out the civic amenity sites. Therefore, when the 1989 Rules continue to remain on the statute book, the authority is enabled to invoke the same in exercise of its power thereunder.
4. The learned Senior Advocate Shri Naik, by way of rejoinder, would submit that in the first instance, without prejudice to the case of the petitioners, the petitioners were directed to deposit one year's rentals as indicated by the BDA, subject to the result of the writ petitions. Such rentals have been deposited in respect of four projects and the BDA has in turn sanctioned the plan with respect of the civic amenity sites to be 15 developed by the petitioners and handed over to the residents association. Regulation 7.1 that provides for regulations for residential development plan and 7.1.1 and 7.1.2, 10% of the land shall be reserved for parks and open spaces, which is to be relinquished to the authority free of cost and which may be allowed to be maintained by the local residents' association, if the authority so desires. A minimum of 5% of the total plot area shall be provided for civic amenity sites. The petitioners have relinquished 15% of the total plot area in terms of the above regulations in all its five projects. Therefore, after coming into force of the RMP, 2015 with effect from 25.06.2007, the petitioners had been requesting the BDA to release the land to develop the civic amenity sites which is ultimately to be handed over to the local residents' association for maintenance. Under RMP, 2015, it is the builder who is compulsorily required to develop the civic amenity sites free of cost and hand over the same to the local residents associations who are the ultimate beneficiaries of the developed civic amenities. It is pointed out 16 that this court has declared the position of law in this regard, in that , the 1989 Rules not being attracted and the totally different purpose and object of the introduction of the RMP 2015. While also holding that there is indeed no conflict between the two, in deciding the writ petitions as at Annexures C & D to the petitions. The BDA having accepted the findings, as the said Orders have attained finality, is estopped from contending otherwise. There can be no doubt as is evident from the allotment letters now issued in respect of the civic amenity sites that the same are issued with reference to the RMP 2015. Having regard to the finding of this court , the BDA is not justified in dismissing the RMP 2015, as a mere "notification" over which the 1989 Rules, purportedly, prevail.
The claim of the BDA that by virtue of the relinquishment deeds executed by the petitioners, it has gained the absolute authority to impose any conditions, is misconceived. As the development of the civic amenity sites is entirely at the cost of the petitioners and the ultimate beneficiaries being the local residents 17 associations, there is no justification in fact or in law for the BDA to impose any such obligation of payment of lease rentals or other charges. This would amount to nothing short of extortion. The petitioners in any event do not stand to gain any benefit from the allotment of the civic amenity sites.
It is asserted that it is Regulation 7.1.2 of RMP 2015 which is relevant and a plain reading of the same would indicate that there are four stages that are contemplated in the transfer of civic amenity sites.
a) A minimum of 5 % of total plot area shall be provided for civic amenities.
b) The owner or developer shall develop such civic amenities.
c) The developed civic amenity site shall , ultimately, be handed over to the local residents associations.
d) The mode of such handing over shall be decided by the authority.18
In deciding the "mode of handing over", there is no scope for the BDA to act under the 1989 Rules, while exercising its authority under the RMP 2015. In any event RMP 2015 does not contemplate the imposition of lease rentals or the execution of a lease deed. The development of the civic amenity site by the developer and handing over to resident associations is not a scenario contemplated under the 1989 Rules.
5. In the light of the above contentions, it is to be noticed at the outset that the controversy has been largely considered and an opinion expressed by this court that the BDA cannot apply the 1989 Rules in acting under Clause 7.1.2 of the RMP 2015 (which is the Clause relevant for the purposes of this case.) This court by its Order dated 13-7-2011, passed in W.P.No.12689/2011, M/s Golden Gate Properties Ltd. Vs. State of Karnataka & another, has expressed thus :
"Insofar as 5% of the area provided for civic amenities is concerned, the developer has to develop the civic amenities and thereafter, the same has to be 19 handed over to the local residents association for maintenance. The mode of such handing over has to be decided by the Authority i.e., the BDA. Therefore, representations have been made in that regard both by the developer as well as the Association to permit 10% of the park and open space which has been relinquished to the BDA for permission to maintain the same by the Association and further a request has also been made for the development of 5% of the Civic Amenities Areas so that the same could be handed over to the local residents' association for maintenance. While considering the said representations, the BDA has applied the Rules of 1989, which in my view, are not applicable, having regard to the fact that the regulations and particularly Regulation 7.1 are clearly specific and they being approved by the State Government would have an overriding effect on the 1989 Rules. The 1989 Rules deals with the allotment of Civic Amenity Sites to various categories of persons mentioned in the said Rules on lease basis for the purpose of providing Civic Amenities, subject to certain terms and conditions. The expression Civic Amenity Site is defined in Clause 'b' of Section 2 to 20 mean an area marked for civic amenity in a layout formed by the authority earmarked is not a private layout approved by the authority and relinquished to it.
11. The object of the Karnataka Town and Country Planning Act, 1961 is to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Under the Act what is envisaged is to create favourable conditions to provide full civic and social amenities for the people of the State and to improve existing recreational facilities and other amenities contributing towards plan, use of lands and to generally promote standards of living. 'Development' has been defined in Sub-Clause (1-c) of Section 2 of the Act. Under Section (3-b) 'Master Plan' is defined to mean a plan for the development or re-development of the area within the jurisdiction of the planning authority. 'Planning Authority' is defined in Sub-Section (7) of Section 2 which refers to Bangalore Development Authority as far as local planning area comprising the City of Bangalore is 21 concerned. Preparation of Master Plan is envisaged under Section 9 of the Act, while Section 10 deals with declaration of intention for making Master Plan. Contents of the Master Plan is stated in Section 12 of the Act while the procedure for approval of the Master Plan is enunciated in Section 13. The Zoning Regulation for Bangalore was approved by Government Order dated 25.6.2007, popularly called the Revised Master Plan-2015 which applies to the Bangalore Metropolitan Area also defined as the Local Planning for the City of Bangalore and its surroundings as declared under Karnataka Town and Country Planning Act, 1961 and the Authority i.e., BDA has certainpowers and duties with regard to the enforcement of the Master Plan-2015. The Revised Master Plan-2015 has to be read in terms of the relevant planning district plans in the matter of permissible land uses within the zone and the respective regulations for land use to achieve orderly growth. The entire Local Planning Area for the city of Bangalore has been divided into three main Rings and the classification of land use zones are also given including public utilities and Park and open space. Having regard to the fact that the zoning regulations 22 for Bangalore Local Planning Area is prepared in terms of Section 12 of the Karnataka Town and Country Planning Act and the Revised Regulations have been adopted by Government Order dated 25.6.2007, the same would be applicable in respect of Group Housing since it is the BDA which is the Authority which has to grant sanction for Group Housing Plan.
12. Thus, Revised Master Plan-2015 is a document which envisages a compact balanced plan and equitable, urban growth for the city. Zonal Regulations are an integral part of the Revised Master Plan-2015 and are required to be read with the proposals for land use plans.
13. Chapter 7 of the Revised Master Plan- 2015 deals with regulations for residential development plans and non-residential development plans. Chapter 7.1 deals with residential development plan, which is under consideration. Regulation 7 deals with the manner in which areas reserved for park and open space which are relinquished to the authority can be maintained by the 23 local residents' association if the authority so desires. As far as civic amenity sites are concerned, Regulation 7.2 provides for development of the said sites by the developer and the maintenance. Though the open space and park areas or the civic amenity sites may be relinquished by the developer of the private layout through the authority, nevertheless what regulation under Chapter 7 prescribes is, only with regard to the maintenance of the said areas. The said regulations do not deal with disposal of such sites. Even in the absence of disposal of the said areas by the authority, the maintenance of the said city can be handed over to the registered local residents' association. It is only when the civic amenity site is allotted to specific categories of persons that the Bangalore Development Authority (Allotment of Civil Amenity Site) Rules, 1989 would apply. The said allotment would be having regard to various criteria as stated in Rule 7 read with Rules 4 and 10. Therefore, when there is no allotment of a civic amenity site, but only the maintenance of the same has to be considered, Regulation 7 of the Master Plan-2015 24 would apply and not Rules of 1989. It is only when a civil amenity site is to be disposed on the basis of a lease to be executed by the authority that the 1989 Rules would apply.
(Emphasis supplied)
14. In the instant case, the petitioners are seeking a direction to the Bangalore Development Authority to consider their representation as well as the representation made by the association in terms of Chapters 7.1 and 7.2 of Revised Master Plan-2015. They are not seeking any allotment of the civic amenity site which they have relinquished to the BDA. Therefore, 1989 rules pertaining to allotment of Civic Amenity Sites would not be applicable.
15. Hence, the BDA has to consider the representation made by the petitioner as well as by the Association in terms of Regulations 7.1 and 7.2 respectively rather than referring the matter to the State Government or by stating that a lease has to be executed by the BDA with regard to the park and open space as well as with regard to the Civic Amenity Sites. Hence, a direction has to be issued to the respondent-BDA to consider the representation 25 made by the petitioner as well as the Association which are at Annexure-F in the context of Regulation 7.1 of the Revised Master Plan-2015. Moreover, the State Government has also stated that it is for the Bangalore Development Authority to take a decision in the matter in terms of letter dated 21.4.2011 which is filed along with the memo dated 12.7.2011. The respondent-BDA is therefore directed to consider the case of the petitioners in the light of Regulation 7 of the Revised Master Plan-2015 and not under the 1989 Rules. The said consideration shall be made within a period of two months from the date of receipt of the certified copy of this order. In the result, the writ petition is disposed of with the above direction."
(Emphasis supplied) The above decision was in fact applied to the petitioners herein in their earlier petition before this court in WP 31663- 667/ 2011 dated 6-9-2011, a copy of the Order is at Annexure -C to the present petitions.
It is therefore inexplicable that the BDA has chosen to ignore the specific direction of this court. The conditions 26 imposed, of a deposit, a yearly rental and surcharge, under the several allotment certificates issued in respect of the specific civic amenities, which are under challenge in these petitions, cannot be justified.
Under Chapter 6 of the RMP 2015, providing for - Sub- division Regulations , under Regulation 6.1 d) i) it is provided as under :
"d) Civic amenities and Roads:
i) After making provision for Parks and roads in the layout, the balance portion of land shall be earmarked for civic amenity site only. Such CA site shall be relinquished to BDA free of cost and free of encumbrance."
Further Regulation 6.2 i. , reads as follows :
"6.2) General conditions applicable for sub division, amalgamation and Bifurcation of plot:
i. Subdivision The Authority reserves the right to modify the layout submitted by the applicant / owner and may impose 27 any condition either from planning point of view or in interest of public.
60% of the sites shall be released upon issue of work order based on the draft plan. The sites to be released are to be clearly indicated on the plan along with the phasewise development. The release of sites is subject to relinquishment of civic amenity sites / parks 7 open spaces and roads to the authority free of cost by way of a registered relinquishment deed. 40% of the sites shall be released only after the layout is fully developed in terms of utilities and infrastructure. The entire process shall be as per the government order issued in this regard.
The approval of Layout Plan is subject to the condition that the proposal satisfies all the requirements stipulated under section 17 of K.T.C.P. Act, 1961 and section 32 of BDA Act, 1976."
And Regulation 7.1, (7.1.1 & 7.1.2 ) read as follows :
"7.1 Regulations for Residential Development Plan:
1. 10% of the land shall be reserved for Park and Open space. The open space (park) shall be 28 relinquished to the authority free of cost and the same may be allowed to be maintained by the local residents association (registered), if the Authority so desires.
2. A minimum 5% of total plot area shall be provided for Civic amenities and the owner or developer shall develop such civic amenities which finally shall be handed over to the local residents association for maintenance. The mode of such handing over shall be decided by the authority."
6. In the instant case the land is of the petitioners, the development plans indicating the area earmarked for the civic amenity sites were duly approved. The petitioners have relinquished the said civic amenity sites in favour of the BDA.
The said civic amenities were to be developed at the cost of the petitioners for purposes indicated in the sanctioned plans. There is no dispute that the petitioners seek to develop the specified amenities for the benefit of the local residents, who apparently would have paid the price for such facility being provided as a 29 common facility for all the residents. There is hence no consideration flowing from the BDA in seeking to impose conditions of payment of lease rentals, a deposit or surcharge. Property taxes in any event would be payable in respect of the structures, which would adequately reimburse the BDA or such other local authority which provides the general facilities such as water supply, sewerage connections & power. ( Provided the same are not alternatively provided for, in-house ) The BDA not being able to resist the imposition of the above rentals, only on the basis of the circumstance that the law requires the civic amenity site to be relinquished in favour of the authority as a pre-condition to development of the land and that the same stands vested in it as on date, is unreasonable and arbitrary. The obvious requirement that civic amenities and the parks as well as open spaces appurtenant to any such development of land, as in the present case on hand, being relinquished in favour of the BDA is to ensure that same are compulsorily maintained as such and that the developer does not dispose of the same for private profit. 30 Therefore the authority being given the discretion to decide the mode of transfer of the civic amenity in favour of the local residents association, after the development of the same, only implies that the ultimate transferee is placed on terms as to the manner in which the civic amenity shall be maintained and the terms and conditions on which any such civic amenity could be thrown open to the general public - if that is a possibility, or such other safeguard being worked into the terms on which the transfer is made to the local residents association for the limited purpose of maintenance. In other words it would be unjust to permit the BDA to embark on a " lease- back" arrangement in respect of land that belonged to the petitioners, and now to the local residents who are the transferees of the developed land, of which the civic amenity is only an appurtenance.
7. Therefore, in the opinion of this court the impugned conditions demanding payment of any one time payment of lease amount and yearly rentals or such other charges are wholly 31 unreasonable and are liable to be quashed. The petitions are allowed as prayed for. The BDA is bound to refund any amounts deposited pursuant to the impugned conditions imposed under the allotment certificates, forthwith. In any event within a period of 15 days from the date of receipt of a copy of this order.
Sd/-
JUDGE KS