Karnataka High Court
A V Devendra Rao vs Bruhat Bangalore Mahanagara Palike on 1 April, 2013
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
W.P.NO.27148 OF 2009 (LB-BMP)
BETWEEN:
A.V.DEVENDRA RAO
S/O LATE A.VITTAL RAO
AGED ABOUT 64 YEARS
R/AT EAST ANJANEYA TEMPLE STREET
BASAVANAGUDI
BANGALORE - 560 004
... PETITIONER
(BY SRI.PRASAHNT KAMMAR ADV. FOR M/S LAWYERS
INC., ADVS.)
AND:
1. BRUHAT BANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS
COMMISSIONER
BBMP, CORPORATION BUILDINS
HUDSON CIRCLE
BANGALORE
BANGALORE CITY.
2. THE BANGALORE DEVELOPMENT AUTHORITY
REPRESENTED BY ITS
COMMISSIONER
T.CHOWDAIAH ROAD
K.P. WEST, BANGALORE.
...RESPONDENTS
(BY SRI.I.G.GACHCHINAMATH ADV. FOR R1
SRI.M.KARUNAKAR ADV. FOR R2)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA WITH A
PRAYER TO DIRECT THE RESPONDENT-BRUHAT
2
BANGALORE MAHANAGARA PALIKE TO
SHELVE/ABANDON THE PROPOSED PROJECT OF
ESTABLISHING THE CREMATORIUM OR GRAVEYARD IN
C.A. SITE NOS.17 & 18 IN THE LAYOUT FORMED BY IDEAL
HOMES HOUSE BUILDING CO-OPERATIVE SOCIETY
LIMITED WHICH ARE EAR-MARKED FOR FORMATION OF
PARK.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court seeking for a direction to the respondent No.1 to shelve/abandon the proposed project of establishing the crematorium or Graveyard in C.A.Site Nos.17 & 18 in the layout formed by Ideal Homes House Building Co-operative Society Limited. The petitioner has also sought for a direction to the respondent to develop C.A.Site Nos.17 & 18 as park.
2. The case of the petitioner is that Ideal Homes House Building Co-operative Society Limited, had formed a residential layout in about 408 acres and 7 ½ guntas of land situated in various Survey numbers of Kenchanahalli and Halagevaderahally Villages, Kengeri Hobli, Bangalore South Taluk. The said layout is stated to have been formed after obtaining due approval from 3 respondent No.2. In the said layout plan, Site Nos.17 & 18 were designated as civic amenity sites. As required under the conditions for grant of approval, the said sites thereafter had been relinquished in favour of respondent No.2 under the deed dated 8.7.1991. The father of the petitioner who was a member of the said society was allotted site bearing No.508 in the said layout. The allottee late Vittal Rao passed away and as such the petitioner is presently the owner of the said property. Insofar as the ownership to the said property, the document dated 20.2.2001 is referred to.
3. The grievance of the petitioner is that the site Nos.17 & 18 though designated as parks are presently being converted into burial ground and crematorium by respondent No.1 within whose jurisdiction the property is presently situate. It is in that context the petitioner is before this Court seeking for appropriate directions. In order to substantiate the fact that respondent No.2 had considered the said site Nos.17 & 18 as parks the petitioner has referred to an earlier petition in W.P.No.767/1996 wherein the father of the petitioner 4 had sought a direction to respondent No.2 to prevent misuse of the said civic amenity sites, which is adjacent to the site belonging to the father of the petitioner. The petition was disposed of on 20.6.1996 with a direction that the said sites be utilized as civic amenities sites as indicated in the development plant.
4. Since, the direction issued by this Court had not been complied, Contempt proceedings in CCC No.382/1999 had been instituted by the father of the petitioner. In the said proceedings the then Commissioner of respondent No.2 had filed an affidavit clearly indicating that the C.A.Site Nos.17 & 18 were marked as parks and has been levelled and also hollow bricks compound wall has been constructed. It is also stated therein that on clearly protecting the said site it has been handed over to the City Municipal Council, Pattangere on 12.10.2000 by the Assistant Executive Engineer-II, South Division of respondent No.2. The documents of handing over the sites had also been relied on. Further in the reply statement filed in the said Contempt proceedings also such contentions had been 5 put forth on behalf of respondent No.2. Yet another affidavit came to be filed by the then Commissioner wherein also the issue relating to the site bearing No.17 having been developed as park had been stated along with the photographs. In view of such undertaking made by respondent No.2, the CCC was dropped by the order dated 14.02.2001. When this was the position the petitioner having noticed certain boards being displayed in the area by respondent No.1 indicating that certain infrastructural facilities are being provided for the purpose of the burial ground has instituted the instant petition.
5. The respondents have filed their separate objection statement.
6. Firstly, it is necessary to notice the objection statement filed on behalf of respondent No.2. The respondent No.2 relying upon the plan, which has been produced along with objection statement at Annexure- R1 would indicate that the sites bearing Nos.17 & 18 have been ear marked for C.A. sites, i.e., playground 6 and park. The fact that it was retained as such and it was handed over to the Pattangere CMC is also stated. Insofar as the objections filed by respondent No.1, it is not disputed that the sites are civic amenities sites. But however, it is indicated that respondent No.1 by itself has no proposal to establish either a crematorium or graveyard. However, since there was already some tombs when the area was handed over to respondent No.1 by the Pattangere City Municipal Council, the basic facilities for the graveyard is being provided.
7. In the light of the rival contentions, what is evident is that it is the common case of the petitioners as well as respondents 1 and 2 that the site Nos.17 & 18 are civic amenity sites, which are to be maintained as parks. Hence, to the extent of the contentions put forth by the petitioner the same is wholly supported by not only the objection statement filed by respondent No.2 herein, but also the affidavits that had been filed in the Contempt Proceedings, which had been initiated as far back in the year 1999. Therefore, what is clear is that the said two sites were ear marked as civic amenity 7 sites and even respondent No.2 contends that when the sites were handed over to the Pattangere City Municipal Council, it was retained as parks and thereafter, it had been handed over. It is in that context the stand of respondent No.2 becomes relevant. Even respondent No.2 does not dispute that the same was reserved as a civic amenity sites to be maintained as park, but what is contended is that there existed a burial ground and therefore facilities are being provided. In such circumstances, when respondent No.2 with whose approval the layout had been formed and it had been relinquished in their favour contend that they had handed over the same to the Pattangere City Municipal Council as a park and a civic amenity site, certainly, the same would have to be maintained as such. The first respondent within whose jurisdiction the property is situated in any event cannot plead helplessness to indicate that though they do not have the intention to construct a crematorium or reserve the same as a burial ground they are only providing facilities to the exiting burial ground. The responsibility cast on them under 8 the statute is to maintain the said area for the purpose for which it has been reserved without allowing any further conversion. If the above aspect of the matter is kept in view, the indications or the steps taken by respondent No.1 to provide better facilities to continue to retain the same as a burial ground or for the construction of the crematorium as displayed from the photographs at Annexures-G1 and G2 cannot be sustained. To contend with regard to the position that the sites, which are reserved for a particular purpose should be held on for the said purpose, the learned counsel for the petitioner has relied on the decisions of the Hon'ble Supreme Court in the case of Bangalore Medical Trust vs. B.S.Muddappa and Others reported in AIR 1991 SC 1902 and in the case of Machavarapu Srinivasa Rao and another vs. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and Others reported in (2011) 12 SCC 154 wherein the Hon'ble Supreme Court has placed reliance on the earlier decision in the case of B.S.Muddappa. When the said position of law is enunciated by the Hon'ble 9 Supreme Court and in the present facts, the fact situation provides that the civic amenity site Nos.17 & 18 are reserved as civic amenity sites for park, certainly the respondent No.1 within whose jurisdiction the said sites are situate shall maintain the same as civic amenity site and develop the same as parks. The respondent No.1 shall take all steps to prevent any further burials or cremation from taking place in the said sites nor shall they provide any facilities for the said purpose. With the said direction, the petition is disposed of. Accordingly Misc.W.2439/2010 is allowed and the documents are taken on record.
Sd/-
JUDGE SS