Karnataka High Court
Siddalingappa vs Bangalore Development Authority on 13 March, 1986
Equivalent citations: ILR1986KAR3023
ORDER K. A. Swami, J.
1. In this Petition under Article 226 of the Constitution, the Petitioners have sought for quashing the resolution bearing No. 508 dated 14th December, 1977 passed by the first Respondent allotting on lease basis, a civic amenity site measuring 236' + 241' X 90' + 93' 2 2 situated near K. R. Road, Banashankari II Stage, Bangalore in favour of the 2nd Respondent for construction of Kalyanamantapa-cum-Vinayaka Temple Complex to cater the needs of all communities on outright payment of Rs. 96,990/- at the rate of Rs. 40/- per Sq. yard and subject to other usual conditions of allotment, of civic amenity site. At the time of allotment, the site in question did not bear any number. Subsequently, it is not now in dispute that, it has been assigned a number as 41. Pursuant to the aforesaid resolution, a lease deed for a period of thirty years has also been executed on 17-11-1978 by the first respondent in favour of the 2nd respondent.
2. The Petitioners are residents of Banashankari II Stage Layout. It is the case of the Petitioners that the site in question in the layout plan of Banashankari II Stage, had been reserved for civic amenities and as such, it was not permissible for the first respondent to divert the use of the said site for any other purpose or to allot it on lease basis or otherwise to any other person, authority or institution for the purpose other than the one for which it was reserved ; that there are no other civic amenity sites and as a result of diversion of the use of the site in question for the purpose other than civic amenity, the residents of the locality are deprived of the civic amenities and as a result thereof, they have been put to health hazards; that the 2nd respondent is not a public trust and it is only a private body and the allotment of the site in question for the purpose of construction of Kalyan Mantap-cum-Vinayaka Temple Complex, cannot at all be considered to be in conformity with the intended use of the site for which it is reserved and such an allotment is opposed to the provisions of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the 'Act')and the Bangalore City Improvement (Allotment of Sites) Rules, 1972 (hereinafter referred to as the 'Rules') ; that the allotment in question for the purpose for which it is now made is also opposed to the definition of 'Amenity' as defined in the Act ; that even otherwise, it is also submitted that by Act No. 17 of 1984, the definition of the expression "civic amenity" has been inserted, and the purpose for which the allotment is made in favour of the 2nd respondent does not fall within the said definition inasmuch as it is submitted that the Act No. 17/84 is retrospective in its operation ; therefore, it must be deemed to have been in force when the allotment was made and as such, the allotment in question does not satisfy the definition of the expression "civic amenity" ; therefore it is bad in law ; that as per the terms of the trust deed, by reason of substitution of eat of the objects contained in the trust deed, the temple has been deleted and as a result thereof, the purpose for which the allotment is made cannot at all be adhered to by the 2nd respondent as it cannot now construct a temple ; hence the 2nd respondent has committed breach of conditions of the allotment ; therefore the allotment is liable to be set aside on this ground also.
3. The respondents 1 and 2 have filed separate statements of objections, According to the case of the first respondent, the site in question, was not reserved for any specific civic amenity; therefore it was open to the first respondent to allot it to any person or authority or institution for such use which was not inconsistent with the civic amenity ; that the allotment of a site for the purpose of construction of Kalyan Mantap-cum-Vinayaka Temple Complex does fall within the scope of the expression "civic amenity" as it is useful to the general public for the purpose of celebrating marriages and holding other social congregations ; and Vinayaka Temple serves the religious faith of members of the public ; that according to the conditions imposed under the lease-deed produced as Annexure-R2 by the 2nd Respondent, it is not open to the 2nd Respondent to use the site in question for any other purpose other than the one mentioned in the lease-deed ; that at the end of the lease period, in case it is not renewed, the land along with the buildings put up thereon, reverts to the first Respondent ; that even in the event the trust ceases to exist during the period when the lease is in force, the land and the properties comprised therein go to the another trust only and it will not go to any other private individual ; that there are several civic amenity sites in the extension in question ; that as per Rule 4 of the Rules, the first Respondent is entitled to allot the civic amenity sites to individuals or institutions or the public authorities ; therefore, it is the case of the first Respondent that the allotment of the site in question for the purpose of construction of Kalyana Mantap-cum-Vinayaka Temple Complex is for the purpose of providing civic amenities, as such, the allotment is valid in law.
4. It is the case of the 2nd Respondent that it is a public trust. A copy of the trust deed along with the Rectification Deed have also been produced. On the basis of the terms contained in the trust-deed, it is submitted that the trust is a public trust and it is not a private trust and the site in question is going to be used only for the purpose for which it is allotted ; that as per the sanctioned plan, the 2nd Respondent has to construct a Kalyan Mantap-cum-Vinayaka Temple Complex ; therefore, both the Kalyan Mantap and Vinayaka Temple serve the public needs ; hence the case of the 2nd Respondent is that several members of the public have come forward and contributed money in thousands and the 2nd Respondent has paid the entire sum as mentioned in the lease deed and has also obtained the possession ; that it has also taken up the construction work which according to the 2nd Respondent, is in progress ; that it will not divert the use of the site in question for any other purpose other than the one for which it is allotted ; that no doubt, the Act, as it stood prior to the coming into force of the Amending Act 17 of 1984 contained the definition of the expression "amenity"; that the definition of the expression ''amenity" is an inclusive one and it is not exhaustive ; therefore, irrespective of what is stated in Section 2(b) of the Act, any convenience to the public will be an amenity within the meaning of the Act ; therefore, the allotment of the site for the purpose of Kalyan Mantap -cum- Vinayaka Temple Complex is not in any way opposed to the provisions of the Act and the Rules ; that Act 17 of 1984 is not retrospective and it is only prospective and on the date the Act 17 of 1984 came into force, the allotment of the site in question had taken place and the possession of the same had also been delivered and the lease deed (Annexure-A) was also executed; therefore, the provisions of the Act 17 of 1984 is not applicable to the allotment of the site in question.
5. Having regard to the aforesaid contentions, the following points arise for consideration :
i) Whether the resolution dated 14-12-1977 bearing No. 508 allotting the Civic Amenity Site in question to the 2nd Respondent on lease basis fur the purpose of construction of Kalyan Mantap-cum-Vinayaka Temple Complex, was opposed to the provisions of the Act and the Rules ?
ii) Whether the use of the site in question for construction of Kalyan Mantap-cum-Vinayaka Temple Complex can be held to provide civic amenity ?
iii) Whether the provisions of the Act No. 17 of 1984 are retrospective in operation ?
iv) Whether the Trust in question is a public charitable trust?
v) What order ?
6.1) POINT NOS. (i) and (ii) : These two points can be dealt together. It is not in dispute that the site in question as per the layout plan or the development plan prepared and approved under Sections 15 and 16 of the Act, respectively, by the State Government was reserved for a civic amenity. It is also not in dispute that it was not reserved for any specific civic amenity. It has been allotted, as already pointed out, on lease basis to the 2nd respondent by the impugned resolution for the purpose of construction of Kalyan Mantap-cum-Vinayaka Temple Complex. As per the definition of the expression "amenity" contained in Section 2(b) of the Act, it includes road, street lighting, drainage, public works and such other conveniences as the Government may by notification specify to be an amenity for the purpose of the Act. Section 16 of the Act, provides for the particulars to be provided for in a development scheme.
6.2) The case of the petitioners as adverted to earlier, is that the civic amenity site in question is required to be kept vacant as it is intended to provide lung space for the residents of the locality and the allotment of it for other purpose violates the development plan ; that such a change can only be done if it is approved by the State Government. In this regard, Sub section (5) of Section 18 of the Act, is relied upon. Therefore, it is necessary to examine whether the allotment of the site in question for the construction of Kalyan Mantap-cum-Vinayaka Temple Complex a mounts to diverting the site in question for a purpose other than the one for which it is intended. As it is already pointed out, definition of the expression "amenity" is not exhaustive. It is an inclusive definition. Added to that the site in question is not reserved for any specific civic amenity ; therefore it is open to the first respondent to use it for a purpose which provides amenity to public at large. As per the Websters Dictionary, the word "Amenity" means creation of conveniences to public at large. It cannot at all be denied that Kalyan Mantap is not open to the use of public and is not a convenience to public. Similarly, Vinayaka Temple also serves the need of public, as it provides a place for worship to public. In the absence of particularisation of the site for a specific civic amenity, the use of the site in question for the aforesaid purposes cannot bo held as not providing an amenity to public or depriving of an amenity. When once it is held that the use of the site for the aforesaid purpose provides an amenity, the question of violation of the development scheme does not arise, because the use of the site will be in conformity with the development scheme. In such an event, the question of obtaining the approval of the State Government also does not arise. Hence, I am of the view that the allotment of the site in question to the 2nd respondent is not for the purpose other than the one for which it is reserved or at any rate does not undermine public convenience.
6.3) In this connection, Learned Counsel for the petitioner has placed reliance on a Division Bench decision of this Court, reported in Holy Saint Education Society -v.- Venkataramana P. & ors., ILR (Karnataka) 1932(1) 1. In that case, in a private layout, a site was reserved for children park. After the development of the lay-out as per law, the site was handed over to the Corporation. After it was handed over to the Corporation, it was allotted by the Corporation to the private educational institution for the purpose of construction of a building for school. Under those circumstances, it was held by this Court that it was not permissible for the Corporation to divert the use of the site for the purpose of construction of a building for school, because it was reserved for children park. It was further held that the site was transferred to the Corporation as a Trust for the purpose of utilising it for children park ; hence it was not permissible for the Corporation to transfer it. The facts of the case as stated above, make it clear that the aforesaid decision cannot at all be applied to the present case inasmuch as the site in question was not reserved for any specific civic amenity. Hence, it is not possible to hold that the enunciation made in the aforesaid decision is applicable to the present case. Accordingly, Point No. (i) is answered in the negative and Point No. (ii) is answered i the affirmative.
7. POINT NO. (iii): It is not possible to hold that Act No. 17/84 is retrospective in its operation. The Act itself does not in express terms state so. The provisions contained in the Act also do not lend support to such a contention. On the contrary, the provisions contained in Section 38A which is inserted by Act No. 17 of 1984, specifically make it clear that the Legislature did not intend that Act No. 17 of 1984 be operative retrospectively Section 38A of the Act, provides that 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. If the contention of the petitioners is accepted, then all transfers of the sites reserved for public parks or playgrounds and civic amenities for other purposes would be rendered null and void. There is no warrant for such an interpretation. Whenever an. enactment provides for penal consequences, it is the normal rule of construction that such an enactment is prospective and not retrospective inasmuch as the Legislature cannot be intended to nullify the acts which had taken place in accordance with the law that was in force earlier to the coming into force of the Act, unless there is a specific provision contained in the Act to that effect. However, in this regard, earned Counsel for the petitioners has placed reliance on a Division Bench decision of this Court reported in B. V. Rathnakar -v.- Karnataka Public Service Commission, ILR 1985 KAR 3429; and also the Statement of Law made by Craies on Statutes, 6th Edition, page 294 and 391. The aforesaid decision of this Court reiterates the rule of construction as to retrospective operation of an enactment as follows :
"10........
It is one of the firmly established rules of construction that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure. The normal rule of interpretation is that unless amending law indicates clearly that the intention of the law making authority was to make it retrospective. Courts do not generally view such law as being retrospective. The reason being that in cases where parties have acquired certain valuable rights under the old law, then Courts have always refused to deprive parties of that valuable rights by interpreting a change in the law as being retrospective."
Keeping in view the aforesaid rule of construction, I will now examine the provisions of Act No. 17 of 1984. Section 2(bb) is inserted by Section 2 of Act No. 17/1984. It only defines the expression "civic amenity". A civic amenity site allotted and a construction had also been put up on it on the date Act No. 17 of 1984 came into force, if it is found that it does lot conform to the definition of Civic Amenity as inserted by Section 2 of Act No. 17 of 1984, the allotment cannot be cancelled as it will result in depriving the allottees from their valuable rights which they acquired as per Law it existed at the time of allotment. Section 3 of Act No. 17 of 1984 inserts Clause(d) in Section 16 of the Act, which provides that the reservation of not less than fifteen per cent of the total area of the layout for public parks and playgrounds and an additional area of not less than ten per cent of the total area of the lay-out for civic amenities. Section 16 of the Act, as it is already pointed out, deals with the development scheme. If Act No. 17 of 1984 has to be held as retrospective, the Development Schemes prepared and implemented as on the date of coming into force of Act No. 17 of 1984 cannot be brought in conformity with Clause (d) of Sub-section (1) of Section 16 of the Act, because such a course will result in impairing the valuable rights acquired by the parties under the law then existing. Section 4 of Act No. 17 of 1984 inserts Section 38A which is already adverted to. Section 5 of Act No. 17 of 1984 provides for Accounts and Audit and directs that the Commissioner shall cause to be maintained such books of accounts and other registers as may be prescribed and shall prepare in the prescribed manner an annual statement of accounts and the accounts shall be audited annually by an auditor appointed by the Government. The remaining provisions of Section 5 of Act No. 17 of 1984 relate to the accounts and audit. Section 47A is also inserted by Section 5 of Act No. 17 of 1984, which provides that the Authority shall before such date and in such form and at such intervals as may be prescribed, submit to the State Government-a report on such matters as may be prescribed and every such report shall be laid before each House of the State Legislature as soon as may be after it is received by the Government. Section 6 of Act No. 17 of 1984 substitutes the word "one hundred and fifty rupees" occurring in Section 50 of the Act by the words "one thousand and five hundred rupees." Section 50 of the Act, deals with appointment etc. Sub-section (1) thereof, provides that subject to the provisions of the regulations framed under Section 70 and of the Schedule for the time being in force sanctioned by the Government under Section 49 of the Act, the power of appointing promoting, suspending, dismissing, fining, reducing or granting leave to the officers and servants of the Authority (not being officers in Government service lent to the Authority) shall be exercised by the Commissioner in the case of officers and servants whose monthly salary does not exceed one thousand and five hundred rupees and in every other case by the Authority. This also goes to show that if the Act is held to be retrospective, then the power exercised till the date Act Mo. 17 of 1984 is brought into force and actions taken in accordance with law existing at the relevant point of time, will be rendered nugatory. Thus, on a reading of the entire Act No. 17 of 1984, it is noticed that there is no provision contained in Act No. 17 of 1984, which makes it retrospective in operation. Further, it is also not possible even by necessary implication to hold that Act No. 17 of 1984 is retrospective in operation, is such a construction will create a ridiculous situation, causes incalculable injury to the parties to which no Court of Justice can afford to be a party. That being so, it is not possible to hold that the Act No. 17 of 1984 is retrospective in operation. Consequently, the contention based on the definition of the expression "civic amenity" as inserted by Act No. 17/84, must also fail because such a definition was not in force when the allotment of the site in question took place. Accordingly, Point No. (iii) is answered in the negative.
8. POINT No. (iv) : A reading of the clauses contained in the Trust Deed and the rectification deed leaves no doubt that Trust in question is a Public Charitable Trust. It is contended that it is a public charitable trust only for the purpose of Section 80(g) of the Income Tax Act. It is not possible to accept such a contention. There cannot be a Trust for one purpose a public, and for another purpose, a private. It must be held to be a public trust for all purposes. Even the terms of the trust deed also make it explicitly clear that the trust is not a private trust, but it is a public charitable trust. The income of the trust does not go to any private individual or association. It is intended to be used for the purposes or objects of the trust which are public and charitable in nature. Secondly, as per the provisions contained in the Deed further provide that even in the event of the public charitable trust in question ceasing to exist, the assets and liabilities of the trust do not go either to those who have created this trust or to any particular individuals or groups of individuals, they go to another charitable trust only. That being so, the trust in question is a public trust. It is also not claimed by the 2nd respondent that it is a private trust. The object for which the allotment of site is made in favour of the 2nd respondent is also for public purpose as mentioned in the lease deed and in the resolution allotting the site in question to the 2nd respondent. Hence, it is held that the Trust in question is a "Public Charitable Trust." Point No. (iv) is answered accordingly.
9. On the basis of a decision of this Court in Writ Petition No. 20541 of 1984 decided on 24/27th July, 19853 it is contended that the provisions contained in Rule 6 of the Rules (1972 Rules) and those contained in Rule 6 of the 1982 Rules are in pari materia ; that regarding Rule 6 of 1982 Rules it is held in the aforesaid decision that it does not deal with the disposal or leasing of the sites reserved for civic amenities and it deals with the sites intended for allotment for building purposes ; that same interpretation has to be placed on Rule 6 of the 1972 Rules, which was in force at the time of allotment of the site in question and in that event the allotment of civic amenity site in question is without the Authority of Law. Apart from the fact that Rule 6 of the 1972 Rules is not in pari materia with Rule 6 of the 1982 Rules, this contention is not material in this case. At the time of allotment of the site in question, 1972 Rules were in force. Rule 4 of the 1972 Rules, deals with reservation of sites. It provides that the Board may with the previous sanction of the Government, set apart sites in any area for allotment to any specified class of persons or purposes as it may consider necessary. Sub-rule (2) thereof, further provides that where sites are set-apart under Sub-rule(1) the procedure to be followed for allotment of those sites shall subject to the general or special orders of the Government be determined by the Board In the instant case, the site in question was reserved for specific purpose viz, for civic amenity. There is no general or special order of the Government which is relied upon by the petitioners to show that the allotment of the site in question made by the first respondent in favour of 2nd respondent, is not permissible. In the absence of general or special order of the Government the first respondent was at liberty to allot the civic amenity site to the 2nd respondent as long as the object of allotment was not opposed to the purpose for which the site was reserved. That it was not opposed to the purpose for which the site was reserved has already been pointed out in the earlier portion of this order. Therefore, the first respondent acted well within its power in allotting the site in question to the 2nd respondent as Rule 4 of the 1972 Rules empowered the first respondent to allot.
3. Sri Dattaguru Sadananda Spiritual Meditation Centre, Bangalore -v.- State of Karnataka.
10. For the reasons stated above, all the contentions raised by the Petitioners in this Petition fail. Consequently, the Petition fails and the same is dismissed.
11. As the Petitioners intend to go in appeal and as there is an order of temporary injunction passed in this Petition, to enable them to avail the remedy of an appeal and to seek an appropriate interim order in the appeal, it is just and proper to maintain the status quo that is obtaining to-day. Accordingly, the interim order passed in the Writ Petition on 18th March, 1983 will continue till 14th April 1986.