DATED THIS THE 06 DAY OF MARCH, 2013 BEFORE: THE...

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® IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 06TH

DAY OF MARCH, 2013

BEFORE:

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No. 41717 OF 2011 (BDA)

CONNECTED WITH

WRIT PETITION Nos.6452-6453 OF 2011 (BDA)

IN W.P.No.41717 OF 2011

BETWEEN:

1. Manyatha Residents Association

Represented by its Secretary,

Mr. A. Shantaram,

with its registered office at

No.9/1, I Floor, Classic Court,

Richmond Road,

Bangalore – 560 025.

2. Sri. D.N. Srihari,

Son of Mr. D. Narayanaswamy,

Aged about 47 years,

Residing at No.2A,

Shanthi Nivas, No.4

South End Road,

Seshadripuram,


2

3. Mr. N.C.S. Parthasarathi,

Son of Nanduri Panduranga Vithal,


Residing at No.1-2-36,

Domal Guda,

Hyderabad – 000 29.

4. Sri. C. Joseph,

Son of D. Chowrappa,


Residing at No.10, 18/A,

Bhuvaneshwari Nagar,

H.A. Farm Post,


5. Sri. Ramanjeneyula Reddy,

Son of R. Sriramulu Reddy,


Residing at Bhargava Towers,

1st Floor, Flat No.2,

No.20, Dinnur Main Road,

R.T.Nagar,


6. Sri. Shankar Gopal,

Son of Dr. M.G.Gopal,


c/o. Dr. M.G.Gopal,


Residing at No.381,

1st N Block,

19th G-Main,

Rajajinagar,


3

7. Sri. Chandra S. Bachu,

Son of B.R. Krishnamurthy,


C/o. Ramesh Chandra Dutt,

Son of Late S. Chinnaswamy Setty,

No.57, AECS Layout,

RMV 2nd

Stage,


8. Mrs. Amara Radhakrishna,

Wife of Mr. D. Radhakrishna Reddy,


Residing at No.40,

4th

Cross, Ganesha Block,

Nandini Layout,

Mahalakshmi Layout,


9. Mr. N. Vasu,

Son of K. Narayan,


No.12/3, 16th

Cross,

Jai Bharath Nagar,

Hariyamma Temple Street,


10. Mrs. Aleyamma Korah,

Wife of Mr. K.P. Korah,


Residing at No.5,

4th

Cross, Dinnur,

R.T.Nagar, Bangalore – 560 032.

11. Sri. H.S. Vishwanath,

Son of Late H.S. Seetaramaiah,

4


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,


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,


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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,


2. Sri. D.N. Srihari,

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Son of Mr. D. Narayanaswamy,


Residing at No.2A,

Shanthi Nivas,

No.4, South End Road,

Seshadripuram,


3. Sri. C. Joseph,

Son of D. Chowrappa,


Residing at No.10, 18/A,

Bhuvaneshwari Nagar,

H.A. Farm Post,


4. Sri. Chandra S.Bachu,

Son of B.R. Krishnamurthy,


C/o. Ramesh Chandra Dutt,

Son of Late S. Chinnaswamy Setty,

No.57, AECS Layout,

RMV 2nd

Stage,


5. Mrs. Amara Radhakrishna,

Wife of Mr. D. Radhakrishna Reddy,


Residing at No.40,

4th

Cross, Ganesha Block,

Nandini Layout,

Mahalakshmi Layout,


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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,


7. Mrs. A. Shilpa,

Aged: 30 years,

Wife of Sreekar,

No.50/A 21,

Manyata Residency,


8. Mr. A. Sreekar,

Aged: 40 years,

Son of Purnachandra Rao,

No.50/A 21,

Manyata Residency,


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,


2. The Bangalore Development Authority,

Represented by its Commissioner,

T. Chowdaiah Road,

Kumara Park West,


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:-

O R D E R

These petitions are disposed of to-gether having regard to

the fact that the petitioner is common and the issues involved are

identical.

2. The petitioner is an association registered under the

Karnataka Societies Registration Act, 1961 (Hereinafter referred

to as the ‘KSR Act’, for brevity). It is comprised of members who

are owners of houses or house sites in the residential layout

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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

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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

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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,

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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

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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

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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

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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.

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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

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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,

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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

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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 .

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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.

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“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 contended 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

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