Karnataka High Court
Manyatha Residents Association vs The Bangalore Development Authority on 6 March, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
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,
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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.
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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,
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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.
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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,
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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
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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:-
ORDER
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.
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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.
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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.
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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 :
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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